Promises Unfulfilled

Stated Government Goals at Odds With Rollback of Key Civil and Political Rights

Map of China

NHRAP Categories

The NHRAP is organized under the following categories:

I.Guarantee of Economic,
Social and Cultural Rights

1.Right to work

2.Right to basic living conditions

3.Right to social security

4.Right to health

5.Right to education

6.Cultural rights

7.Environmental rights

8.Safeguarding farmers’ rights
and interests

9.Guarantee of human rights in the
reconstruction of areas hit by the devastating earthquake in Wenchuan,
Sichuan province.

II.Guarantee of Civil and
Political Rights

1.Rights of the person/Rights of
detainees

2.The Right to a Fair Trial

3.Freedom of Religious Belief

4.The right to be informed

5.The right to participate

6.The right to be heard

7.The right to oversee

III.Guarantee of the Rights and
Interests of Ethnic Minorities,
Women, Children, Elderly People and the Disabled

1.The rights of ethnic minorities

2.Women’s rights

3.Children’s rights

4.Senior citizens’ rights

5.The rights of the disabled

IV.Education in Human Rights

V.Performing International
Human Rights Duties, and Conducting Exchanges and Cooperation in the Field
of International Human Rights

1.Fulfillment of international human
rights obligations

2.Exchanges and
cooperation in the field of international human rights

The
terminology in this report is consistent with international covenants and
human rights law, and therefore differs slightly in some places from the
terminology employed in the NHRAP.

Summary

In April 2009, the
Chinese government unveiled its 2009-2010 National Human Rights Action Plan
(NHRAP), which sets forth both a program of goals and a timeline for acting on
them.[1]The
Chinese government’s willingness to draft and publicly release a document
which explicitly addresses important human rights issues in China deserves
praise. Nearly two years on, however, deficiencies in the action plan and
government failures to adequately implement some of its key commitments have
rendered it largely a series of unfulfilled promises.

At the time of its release, the NHRAP appeared to mark
another shift from the Chinese government’s traditional posture of
criticizing human rights as an imposition of “Western values”[2]
to embracing them as a national goal to be realized through concrete assessment
targets.[3] The
NHRAP touches on many important rights issues while omitting some very notable
ones. Its style is hortatory—asserting accomplishments and admitting some
difficulties—but opaque. On most issues, the document lacks benchmarks or
the kind of detail that would allow for meaningful assessment of progress. The
question of whether the NHRAP is mainly an effort to deflect internal and
external criticism or a tentative step toward taking rights more seriously is
still an open question.[4] If the
action plan is to serve a more useful role in the future, the Chinese
government should update and revise it, including by addressing the
shortcomings detailed in this report.

The NHRAP is China’s first official human rights
action plan, and reiterates the government’s existing human rights commitments.[5]
The NHRAP notes that the government “has a long road ahead in its efforts
to improve its human rights situation.”[6] It also
stresses the Chinese government’s emphasis on prioritizing “rights
to subsistence and development” over civil and political rights, but
acknowledges that “all kinds of human rights are interdependent and
inseparable,” an important statement.[7] The plan
does not have the force of law, but states that “Governments and
government departments at all levels shall make the action plan part of their
responsibilities, and proactively implement it.”[8]

The NHRAP describes itself as the result of “broad
participation” of 53 named government ministries, agencies, and
government-organized nongovernmental organizations, along with academics from
nine research institutions coordinated by the Information Office of the State
Council and the Ministry of Foreign Affairs.[9] The
Ministry of State Security, which oversees agencies frequently implicated in
human rights abuses, such as the Public Security Bureau (PSB), is not among the
state organs that were reported to be involved.[10]

The NHRAP is divided into five main categories, beginning
with an introduction. Those categories are divided as follows: guarantee of
economic and social rights; guarantees of civil and political rights; guarantee
of the rights and interests of ethnic minorities, women, children, elderly
people, and the disabled; education in human rights and performing
international human rights duties; and conducting exchanges and cooperation in
the field of international human rights. The NHRAP lists the specific rights
included under each category, explains the Chinese government’s
assessment of historical progress to date in protecting those rights, and
describes measures to improve that protection.

Near the half-way mark of
the NHRAP period in December 2009, the Chinese government expressed confidence
that it would achieve its goals and that “for most of the (NHRAP’s)
targets and tasks, which were stipulated in the action plan and expected to be
finished in two years, 50 percent, or even 65 percent for some, have been
accomplished so far,” without providing any details related to those
statistics.[11] That assessment, the Chinese government’s
only public review of the NHRAP’s progress up to the time of writing of
this report, was presented in a speech by Wang Chen, the minister in charge of
the State Council’s Information Office.[12] That assessment also noted that some unspecified
NHRAP goals had not been achieved due to “some problems and defects”
in implementation, including a tendency by unnamed local governments and
departments to “have not actively included the human rights protection in
their work.”[13] The assessment did not elaborate on those
failures.

The NHRAP’s explicit two-year time frame for the
achievement of specific goals was a welcome signal that the Chinese government
intended to devote attention to its human rights record. This re-articulation
from the Chinese government of its commitments to human rights already
guaranteed by Chinese domestic law and international instruments has already
proved valuable for human rights activists, both within China and abroad. The
NHRAP is also a useful metric for the government’s progress in actually
honoring those commitments, and created an opportunity both inside and outside
the country to discuss the development of human rights in China.

The NHRAP is also a useful counterpoint for the government
in rebutting foreign criticism of its human rights record. China’s
English-language state media, including Xinhua News Agency, Xinhua’s
China Economic Information Service, Xinhua Electronics News, Xinhua China
Money, Xinhua Business Weekly, China Daily, and Global Times
published a combined total of 73 reports on the NHRAP’s objectives
between April 13, 2009, and December 14, 2009. However, only one of those
reports assessed the Chinese government’s performance in executing the
plan.[14]

When the NHRAP was first
announced in April 2009, Human Rights Watch noted that the plan could be an
opportunity for more diverse voices to discuss human rights issues in China and
for some of these views to be channeled into an official document. Yet Human
Rights Watch also raised questions about the utility of the NHRAP and the
motivations behind it.[15]

As the NHRAP period draws to a close, this report critically
assesses it, including areas of progress, deficiency, and missed opportunities
over its two-year duration. This document does not provide an evaluation of
China’s overall human rights record, but rather assesses the extent to
which the Chinese government delivered on its NHRAP objectives on key human
rights from 2009 to 2010. The answer is mixed.

At the same time as the
Chinese government has pointed to the NHRAP as evidence of its commitment to
human rights, the government has systematically continued to violate many of
the most basic rights the document addresses. It has taken unambiguous steps to
restrict rights to expression, association, and assembly. It has sentenced
high-profile dissidents to lengthy prison terms on spurious state secrets or
“subversion” charges, expanded restrictions on media and internet
freedom[16] as well as tightened controls on lawyers, human
rights defenders, and nongovernmental organizations. It has broadened controls
on Uighurs and Tibetans, and engaged in increasing numbers of enforced
disappearances and arbitrary detentions, including in secret, unlawful
detention facilities known as “black jails.”[17]

The Chinese government’s reaction to the Nobel Prize
Committee’s October 8 decision to award the 2010 Nobel Peace Prize to
imprisoned writer and human rights activist Liu Xiaobo shows the chasm between
the aspirations embodied in the NHRAP and the government’s actual
behavior. The Chinese government responded to the Nobel Peace Prize announcement
with a wave of repression against perceived dissent. The Chinese
nongovernmental organization Chinese Human Rights Defenders documented
“100 reports of citizens who have been harassed, interrogated, subjected
to surveillance, detained, or placed under ‘soft detention’ across
the country” between October 8, 2010, and November 8, 2010.[18]
They include Liu Xiaobo’s wife, Liu Xia, and Liu Xiaobo’s friend
and fellow dissident, Yu Jie, who have both been placed under house arrest[19]
in the aftermath of Liu’s Nobel Peace Prize.[20]
Other victims of the Chinese government’s anger at the Nobel Peace Prize
include a man named Guo Xianliang, who was arrested by Guangzhou police on
“subversion” charges after he distributed leaflets about Liu
Xiaobo.[21]

In this environment, it is difficult to see the NHRAP as an
effective tool for minimizing human rights abuses, or its adoption as
indicative of a serious shift in the Chinese government’s approach to
human rights protections. Even the senior-most officials are not immune. In an
October 3, 2010 interview with CNN, Premier Wen Jiabao expressed strong support
for greater respect for basic human rights:

I often say that we should not only let people have the
freedom of speech, we more importantly must create conditions to let them
criticize the work of the government. It is only when there is the supervision
and critical oversight from the people that the government will be in a
position to do an even better job, and employees of government departments will
be the true public servants of the people. All these must be conducted within
the range allowed by the constitution and the laws. So that the country will
have a normal order, and that is all the more necessary for such a large
country as China with 1.3 billion people.[22]

Chinese government censors blocked all transmission of that
interview and forbade circulation of the transcript inside the country.[23]

In addition to recommendations on specific topics in each of
the chapters that follow, Human Rights Watch urges the Chinese government to
address the failures of the NHRAP by:

1.Forming
an independent NHRAP review commission to evaluate the success of the
plan’s objectives for addressing torture, illegal detention, fair trial,
the rights of petitioners, the right to health, and other issues targeted in
the NHRAP which have a direct impact on the physical safety, well-being, and
quality of life of millions of Chinese citizens. The commission, composed of representatives
of key government agencies, academic organizations, nongovernmental
organizations, the Public Security Bureau—and in consultation of relevant
United Nations special rapporteurs—should analyze the gaps between the
NHRAP’s objectives and their implementation. The commission should
identify the NHRAP’s shortfalls in order to create a revised NHRAP with
benchmarks, timelines, and periodic assessments to evaluate its implementation;

2.Holding
a public consultation that is open to the media on that audit’s
evaluation of the successes and failures of the NHRAP;

3.Using
the results of that public consultation to develop a blueprint for a fresh,
updated National Human Rights Action Plan designed to address the failings of
the 2009-2010 plan with transparent benchmarks and timelines, and a public
enforcement mechanism to ensure the plan’s implementation;

4.Ensuring
that a new, improved human rights action plan addresses significant omissions
in the original NHRAP, including rights abuses related to the Chinese
government’s household registration, or hukou, system, and the
omission of human rights guarantees for China’s foreign policy,
investment, and development initiatives.

Methodology

This report offers a critical assessment of the NHRAP and
its implementation, including areas of progress, deficiencies, omissions, and
missed opportunities since it was adopted in 2009. It relies on evidence in the
public record, including Chinese and foreign media reports, United Nations
data, and prior research and reporting by Human Rights Watch. The report does
not provide a comprehensive evaluation of China’s overall human rights
record or a forensic analysis of every provision of the NHRAP, but rather
evaluates the extent to which the Chinese government has delivered on a
cross-section of key NHRAP objectives from 2009-2010.

I. Progress in Achieving NHRAP Objectives

Over the past two
decades, the Chinese government has explicitly prioritized the rights of
“subsistence and development,” embodied in the International
Covenant on Economic, Social and Cultural Rights (ICESCR), which China signed
in 1997 and ratified in 2001,[24] over those of the International Covenant on Civil
and Political Rights (ICCPR),[25] which China signed in 1998, but has yet to
ratify. The Chinese government has justified its focus on the grounds that
“the development of economy and the improvement of the people’s
living conditions is a basic guarantee for greater enjoyment of human rights
and fundamental freedoms.”[26]

The Chinese government has made progress in alleviating
poverty over the past three decades. According to official statistics, Chinese
government policies have helped to reduce the number of Chinese living in
absolute poverty[27] by more
than 200 million since 1978.[28] The
Chinese government has also explicitly prioritized “poverty
alleviation” as a goal of the upcoming Twelfth Five-Year Plan for
economic and social development.[29] Although
aggregate statics can be unreliable and poverty and inequality remain serious
problems, the government’s efforts to improve the standard of living is
commendable.

Human Rights Watch has not systematically documented the
Chinese government’s progress in delivering on economic, social, and
cultural rights (ESCR) as articulated by the NHRAP in categories including the
right to work, the right to basic living conditions, the right to social security,
and the right to education. Instead, Human Rights Watch has prioritized the
exposure of the urgent and egregious abuses by the Chinese government of its
citizens’ civil and political rights which often directly impact their
ability to effectively access ESCR. However, the United Nations has recognized
the Chinese government’s success in addressing subsistence and
development rights through the criteria of the UN’s Millennium
Development Goals (MDGs).[30]

In September 2009, the United Nations and China’s Ministry
of Foreign Affairs issued a joint report, which was based mainly on Chinese
government data, and which concluded that “most [MDG] targets have been
met or exceeded seven years in advance. China is also on track to reduce
maternal mortality, and control HIV and AIDS and tuberculosis, with good hopes
for achieving the MDG targets by 2015.”[31]

A review of improvements in key statistical indicators of
public health in China supports the UN’s assessment that the Chinese
government has made significant progress over the past three decades in some
aspects of the right to health. The average life expectancy of Chinese citizens
has risen from 62 years of age in 1970 to 73 years of age in 2008.[32]
China’s under-five mortality rate, which measures the probability of a
child’s death between birth and exactly five years of age, has declined
sharply over the past 30 years from 117 per 1,000 births in 1970 to 21 per
1,000 births in 2008.[33] These
improvements likely reflect the impact of government initiatives in areas including
sanitation and public health.

The Chinese government has also made measurable improvement
over the past three decades in social welfare programs that underpin basic
subsistence rights. In particular, the Chinese government has created social
welfare programs designed to ease the impact on some of its citizens of the
ongoing transition from a socialist planned economy to a more market-oriented
economic model. One such initiative is unemployment insurance, which the
government launched in 1986 as a means to protect workers laid off during a
drastic overhaul of the state-owned industrial sector. The most recent official
data indicates that government unemployment insurance extended to 124 million
Chinese citizens at the end of 2008, an increase of 7.5 million people from
2007.[34] In
August 2010, Ajay Chhibber, the United Nations assistant secretary-general and
director of the UN Development Programmme’s Regional Bureau for Asia and
the Pacific, praised China as a “champion” in meeting MDG targets
for poverty reduction.[35]

Despite those measurable
advances, some statistical indicators suggest the Chinese government is having
less success delivering other key economic, social, and cultural rights. The
United Nations Development Programme’s Human Development Report 2010
notes that some of China’s human development indicators[36] have not kept pace with the country’s
“spectacular” economic growth over the past three decades.[37] Since 1970, China recorded the strongest economic
growth of the 135 countries covered by the Human Development Report 2010, yet
it is ranked 79th of those countries in improvements in education
and health over the same period.[38] The report notes that “China is 1 of only
10 countries in the 135 country sample to have a lower gross [educational]
enrollment ratio now than in the 1970s.”[39]

The UNDP Human
Development Report 2010 concludes that the Chinese central government’s
four-decade long decentralization of basic public services has hurt
people’s access to those services. That decentralization has involved the
withdrawal of central government funding for basic public services,
particularly health care, and obligating provincial governments to provide
those services instead. An inadequate allocation of resources to ensure the
continuation of basic public services has resulted in situations in which
“public social services deteriorated and in some places even
collapsed.”[40] The report criticizes the Chinese
government’s “single-minded pursuit of economic growth” for
creating environmental and economic conditions that have worsened Chinese
citizens’ quality of life.[41]

In addition, strict controls on freedom of expression and
association, as well as restrictions on media freedom, impair the ability of
Chinese citizens to have adequate knowledge of their social and economic rights
and limit their capacity to legally challenge government officials and security
forces who might deny them such rights. These limitations also run counter to
the Chinese government’s own assertion in the NHRAP that “all kinds
of human rights are interdependent and inseparable.”[42]

II. Unmet NHRAP
Objectives

The NHRAP’s introduction specifically lists the
International Covenant on Civil and Political Rights as one of the plan’s
“fundamental principles,” and the plan includes a host of
commitments that would advance such rights.[43] Since
adoption of the plan,however, the Chinese government has failed to
fulfill those commitments, all of which reiterate obligations already enshrined
in the Constitution of the People’s Republic of China and various
international instruments. The NHRAP stipulates both a program of goals, and a
two-year timeline for achieving them. Yet in the two-year NHRAP period, the
government has in fact significantly rolled back key civil and political
rights, thus enabling—rather than reducing—a host of human rights
abuses.

The following section documents how the NHRAP’s
targeting of key civil and political rights for development and improved
protection between 2009 and 2010 failed to translate into substantive government
action on these issues. In some cases, key political rights prioritized in the
NHRAP came under intensified attack by government officials, security forces,
and their agents. Human Rights Watch selected for evaluation the NHRAP’s
performance with regard to these key civil and political rights due to their
importance in protecting citizens from egregious physical harm and in allowing
citizens to be accurately informed about issues of personal and national
interest.

Rights of Detainees

The NHRAP pledged to
protect the personal rights of Chinese citizens “in every process of law
enforcement and judicial work,” and “improve the laws, regulations,
policies and measures related to the protection of detainees rights and
humanitarian treatment.”[44] There has been some official willingness to
acknowledge the shortcomings of Chinese law enforcement. Zhou Yongkang, the
chief of China’s security forces, acknowledged in an August 2010 online
media interview that Chinese police “sometimes are unfair while enforcing
the law.”[45]

A review of the government’s performance in 2009-2010
reveals wide gaps between the goals of the NHRAP and the actual conduct of
government officials and security forces in protecting Chinese citizens,
including detainees, from rights abuses in the following areas:

Torture

The NHRAP states:

The state prohibits the extortion of confessions by
torture. Evidence will be collected in accordance with the legally prescribed
process. It is strictly forbidden to extort confessions by torture and to collect
evidence by threat, enticement, deceit or other unlawful means. Anyone who
coerces confessions out of a suspect by torture, corporal punishment, abuse or
insult shall be handled in accordance with the seriousness of the acts and the
consequences. If the case constitutes a crime, criminal responsibility shall be
investigated in accordance with the law.[46]

The NHRAP states that the government will take effective
measures “to prohibit such acts of corporal punishment, insult of
detainees, or the extraction of confessions by torture.”[47]
Although this is a welcome statement of how the state should act to prevent and
punish the crime of torture, it is not a description of how the state presently
acts in practice. Torture in detention in China remains an endemic problem.
After a 2005 visit, Manfred Nowak, the special rapporteur on torture and other
cruel, inhuman or degrading treatment or punishment in the UN Office of the
High Commissioner for Human Rights, concluded that torture was widespread.[48]
Nowak reported that torture methods in China included “use of electric
shock batons, cigarette burns, guard-instructed beatings by fellow prisoners,
submersion in pits of water or sewage, exposure to extreme heat or cold, being
forced to maintain uncomfortable positions, deprivation of sleep, food or
water, and suspension from overhead fixtures by handcuffs.”[49]
Nowak’s February 2010 follow-up report, to which the Chinese government
declined to contribute, concludes that the Chinese government has failed to
deliver on its NHRAP commitment to end torture of criminal suspects in custody.[50]

Chinese government efforts to address torture in detention
during the period of the NHRAP have included the May 2010 joint issue of two
directives, “The Assessment of Evidence in Death Penalty Cases” and
“The Exclusion of Illegal Evidence in Criminal Cases,” by the
Supreme People’s Court, the Supreme People’s Procuratorate, and the
Ministries of Public Security, State Security, and Justice.[51]
The directives reiterate existing legal prohibitions on the use of torture by
security forces to extract confessions. They also introduced procedural
mechanisms to exclude from court any evidence tainted by torture, including confessions
of defendants and testimonies of prosecution witnesses, which form the basis of
most criminal convictions in China. [52]
However, in at least one prominent case since the directives were issued, these
prohibitions were not followed (see the Fan Qihang case below).

Over the past two years, China’s state media has
highlighted the problem of torture in a series of articles about
“unnatural deaths” of detainees. On June 24, 2010, the Zhejiang
Daily newspaper compiled a list of 15 such deaths from February 2009 to
April 2010, for which official explanations ranged from “death by blind
man’s bluff” and “death by picking at acne” to
“death by drinking water.”[53] The
article cited a former director general of the Detention Center Management
Bureau of the Ministry of Public Security attributing the majority of such
deaths to beatings by both security forces and fellow detainees.[54]

The Supreme People’s
Procuratorate concluded in April 2010 that of the 15 cases of unnatural
detainee deaths in 12 provinces investigated by authorities up to that point in
2010, seven were the result of beatings while three remained under
investigation.[55] In April 2010, the Beijing municipal prisons
authority announced measures to prevent torture, including making wardens in
the city’s 14 prisons personally accountable for the death or injury of
any detainees under their jurisdiction.[56] That same month, the government also announced
that Beijing’s 22 detention centers would be equipped with 24-hour
surveillance cameras to “increase transparency and prevent abnormal
deaths.”[57] These were welcome developments.

However, reports in the
Chinese media indicate that torture has remained widespread and systemic in
China throughout the NHRAP’s 2009-2010 period. A May 13, 2010 editorial
in the China Daily newspaper, the Chinese government’s
English-language mouthpiece, stated that, “Torture is still playing a
role in extracting a confession from suspects in custody. To avoid this
kind of inhuman behaviors, the police need to be policed.”[58]Chen
Youxi, a criminal defense lawyer in Zhejiang province with 15 years of
experience, stated in a June 16, 2010 blog post titled “Torture in China:
Fact or Fiction?” that “100 percent of Chinese criminal defense
lawyers believe coercion of confession by torture is extremely serious in
China.”[59]

The number of reports in a tightly controlled state media is
encouraging, and may suggest that official attitudes towards torture are
beginning to acknowledge the severity of the problem. But meaningful indicators
of changes in practice will entail the prosecution of torturers and the
exclusion of evidence obtained through torture, among others.

Research by Human Rights Watch also provides evidence about
the persistence of torture during the NHRAP period. Human Rights Watch has
documented the use of torture to gain information and confessions from Tibetans
detained over the past two years in the aftermath of protests which broke out
in the Tibetan city of Lhasa and elsewhere on the Tibetan plateau in March
2008.[60] The
Chinese Ministry of Foreign Affairs responded not by announcing an
investigation into the allegations, but rather by accusing Human Rights Watch
of “fabricating papers that are aimed to boost the morale of anti-China
forces, misleading the general public and vilifying the Chinese
government.”[61]

The NHRAP provided the Chinese government an opportunity to
close regulatory loopholes and clearly articulate prohibitions on the use of
evidence obtained through torture from admission in court. The NHRAP lists only
two specific mechanisms aimed to reduce torture, including imposition of a
“physical separation between detainees and interrogators” and a
“system of conducting a physical examination of detainees before and
after an interrogation.”[62]
However, the NHRAP fails to address how and when such measures might be
implemented, the agencies responsible for implementation, and mechanisms to
evaluate the effectiveness of such measures.

To meaningfully address the problem of widespread torture by
Chinese security forces, a revised NHRAP should call for:

1.Annual
publication and review of statistics on the following:

a)The
number of judicial cases where courts have excluded evidence tainted by torture
and the number of cases in which detainees have alleged torture in detention;

b)The
number of investigations of those cases and their results;

c)The
number of cases where administrative or legal action has been taken against
officials accused of torture, so that the public can assess whether the
relevant government agencies are taking effective action to provide
accountability for this universally condemned crime.

2.Publication
and dissemination of the summary of the findings and recommendations of Manfred
Nowak, the former special rapporteur on torture and other cruel, inhuman or
degrading treatment or punishment in the UN Office of the High Commissioner for
Human Rights, regarding widespread torture in China and the Chinese government’s
plans to put an end to it.

3.A
commitment to invite the new special rapporteur on torture and other cruel,
inhuman or degrading treatment or punishment in the UN Office of the High
Commissioner for Human Rights to China to follow up on Nowak’s 2005
findings and recommendations.

4.The
installation of closed-circuit television (CCTV) cameras in prisons and
detention facilities nationwide to minimize the potential for torture of
detainees by security forces; and the institution of legal requirements
allowing lawyers immediate and unimpeded access to CCTV footage in cases of
allegations of torture of suspects.

5.The
adoption of a “Whistleblowers Law” which would allow suspects,
detainees, and their lawyers to file complaints without fear of possible
reprisals by perpetrators.

Illegal Detention

The NHRAP states:

The State prohibits illegal detention by law enforcement
personnel. Taking a criminal suspect in custody, changing the place of custody
or extending the term of detention must be carried out in accordance with the
law. Wrongful or prolonged detention shall be prevented. The State will improve
the measures of providing economic detention,[63] legal
remedies and rehabilitation to victims. Those who are responsible for illegal,
wrongful or prolonged detention shall be subjected to inquiry and punished if
found culpable.[64]

During the 2009-2010 period of the NHRAP, Human Rights
Watch, the Chinese nongovernmental organization Chinese Human Rights Defenders,
and Chinese human rights defenders and civil society activists documented
severe and widespread abuses of detainee rights involving high-profile
dissidents as well as tens of thousands of ordinary Chinese citizens. One of
the most disturbing indications of the Chinese government’s willingness
to use arbitrary detention and enforced disappearance as a tool of political
intimidation during the 2009-2010 period of the NHRAP is the plight of Gao
Zhisheng, a lawyer who took on some of China’s most controversial causes
by defending coal miners and underground Christians. Gao was the victim of an
enforced disappearance by security forces in February 2009. After more than a
year of official denials regarding Gao’s location and wellbeing, Gao
reemerged at his Beijing apartment in early April 2010. Gao confirmed at that
time that during the previous year he had been in detention, but vanished again
days later, apparently back into official custody. Gao’s location,
health, and circumstances remain unknown.[65]

The Chinese government has responded to the award of the
October 8, 2010 Nobel Peace Prize to Chinese writer and human rights activist
Liu Xiaobo with a wave of administrative detentions.[66]
China’s police have legal powers to routinely impose administrative detention
via “re-education through labor,” or laojiao, and house
arrest, or ruanjin. Re-education through labor allows the police to
unilaterally impose custodial sentences of up to three years while depriving
detainees of any due process of law and judicial oversight.[67]
House arrest, which police can impose completely arbitrarily and without
judicial oversight, results in detention at home, with restricted and monitored
internet and phone communications, and 24-hour surveillance by unidentified and
often aggressive security forces.[68] The
individuals targeted included Liu Xiaobo’s wife, Liu Xia, and his friend
and fellow dissident, Yu Jie. Both Liu Xia and Yu Jie remained under house
arrest at the time of writing of this report.[69] Police
in the southern city of Guangzhou have also reportedly arrested Guo Xianliang
on “subversion” charges after he distributed leaflets about Liu
Xiaobo.[70]

During the NHRAP period, Chinese security forces have also
imposed house arrest on civil society activists and human rights defenders
after the conclusion of their formal prison terms. They include Chen Guangcheng.[71]
Chen was released from prison on September 9, but was immediately placed under
house arrest along with his wife and children at their home in Shandong
province, and is forbidden to have any visitors.[72]
Shanghai-based human rights lawyer Zheng Enchong has been under house arrest
since he completed his prison sentence in June 2006.[73]

Another serious violation
of the NHRAP’s commitment to prevent illegal detention is the detention
of what The United Nations Joint Programme on HIV/AIDS (UNAIDS) estimated to be
500,000 suspected drug users who are held in mandatory drug detentions centers
at any given time. Detainees can be held for up to six years under
China’s 2008 Anti-Drug Law without formal charge, trial, or means of
appeal.[74] Such measures violate basic principles of
international law,[75] as well as China’s domestic laws regarding
due process and treatment of detainees.

Human Rights Watch has also documented a widespread campaign
of enforced disappearances[76] by
security forces of dozens of ethnic Uighur men and boys during the NHRAP period
which coincided with riots in Urumqi on July 5-7, 2009, many of whose
whereabouts or reasons for detention are still unknown. Those enforced disappearances
were perpetrated through unlawful, arbitrary arrests in the Uighur areas of the
city of Urumqi in the aftermath of serious ethnic violence there on July 5,
2009.[77] Such
abuses violate article 37 of the Constitution of the People’s Republic of
China.[78] China’s
Ministry of Foreign Affairs dismissed the report by alleging that HRW was
rumor-mongering,[79] and
more than a year later, the government has failed to account for hundreds of
detainees taken into custody in the crackdown that followed the riots.

Similar tactics affect
“petitioners,” who are Chinese citizens, usually from the
countryside, who come to Beijing and other cities seeking redress for
complaints that lower levels of government have not resolved. In November 2009,
Human Rights Watch released a report that documented an ongoing system of
arbitrary arrests and enforced disappearances of petitioners in Beijing and
other cities, where they are held in confinement in illegal secret detention
facilities known as “black jails.”[80] Some 32 of the 38 former black jail detainees
interviewed by Human Rights Watch reported having been abducted by individuals
whom they recognized as government officials and/or members of the security
forces from their home provinces who provided no legal justification for
detention or any information about the detainees’ eventual destination or
possible length of sentence.[81] Human Rights Watch research indicates that black
jail detainees are often physically and psychologically abused by their
captors.[82]

Ministry of Foreign Affairs spokesman Qin Gang responded to
the Human Rights Watch report on black jails by asserting, “There are no
black jails in China.”[83]
However, two weeks after the November 2009 release of the Human Rights Watch
report on black jails, China’s Liaowang magazine, published by the
official Xinhua News Agency, published a detailed expose on black jails that
confirmed and amplified the Human Rights Watch findings and urged the
government to put an end to such abuses.[84] The
spate of media attention did not make all officials willing to discuss the
issue. In a meeting between Chinese government officials and foreign diplomats
after the publication of the Liaowang article, the officials described
the article as “inaccurate” and declined to discuss the topic of
black jails.[85]

On January 19, 2010, the Chinese government issued a
directive to provincial and county-level governments to submit within six
months timetables for closing 582 Beijing-based liaison offices.[86]
Human Rights Watch had identified these liaison offices, which in many cases
are large, walled compounds including hotel and restaurant facilities, as the
sites of black jail facilities run by local governments to detain petitioners
from their respective areas.[87]
However, as of June 2010, only about half of the provincial governments had
submitted detailed plans and timetables for closure of their liaison offices.[88]

In September 2010, Chinese state media reported that Beijing
police had arrested the chairman and general manager of a
company called Anyuanding, alleged to have been involved in abducting and
detaining citizens in black jails.[89]This was a positive step. However, at least one Chinese human rights
lawyer noted that the targeting of just one firm implicated in the operations
of black jails highlighted the government’s failure to address the role
of local officials in perpetuating the black jails system.[90]

The aftermath of protests in Tibet and across the Tibetan
plateau in March 2008 prompted the arrests of thousands of Tibetans
“regardless of legal procedures; where the state provided no
accountability as to the whereabouts of detainees,” concluded a Human
Rights Watch report released in July 2010.[91]
Although Human Rights Watch’s findings were based on interviews with 203
Tibetan refugees and temporary visitors outside China between March 2008 and
April 2010, China’s foreign ministry rejected its findings as a
“fabrication.”[92]

The NHRAP provided the Chinese government with an
opportunity to close regulatory loopholes and clearly articulate mechanisms to
prevent illegal detention and punish its perpetrators. However, the Chinese
government failed to include any mechanisms in the document to meaningfully
address the problem of illegal detention by government officials, security
forces, and their agents. A revised NHRAP should call for the following:

An explicit commitment to stop the practice of enforced
disappearances and transparent mechanisms to ensure that all arrests are
carried out in accordance with both national and international law. To
this end:

a)Ensure
that all persons detained by security forces are held at recognized places of
detention, and that arresting officers identify themselves and present official
identification;

b)All
places of detention should be required to maintain records regarding every
detainee, including the date, time, and location of arrest, the name of the
detainee, the reason for detention, and the specific unit or agency responsible
for the detention. The records should be available to detainees’
families, counsel, and other legitimately interested persons. All transfers of
detainees should be reflected in the records;

c)In
accordance with international and national law, detainees should promptly be
brought before a judge and informed of the reasons for arrest and any charges
against them. The family should be informed promptly of the arrest and location
of the detainee. Any persons detained by the security forces must be allowed
contact with family and unhindered access to legal counsel of their choice;

d)Sign
and ratify the International Convention for the Protection of All Persons from
Enforced Disappearance and enact national legislation that gives force to its
provisions.

An explicit prohibition of the imposition of house arrest
by Chinese police and the lifting of house arrest conditions on
individuals including Liu Xia, Chen Guangcheng, and Zheng Enchong.

An explicit public
admission of the existence of black jails and decisive measures to close
them, set detainees at liberty, and punish jailers. A failure to do so
will likely ensure that abuses will continue and those who operate the
jails will continue to go unpunished.

Death Penalty

The NHRAP states:

[The] Death Penalty shall be strictly controlled and
prudently applied…. [T]he People’s Procuratorate shall tighten its supervision
over death penalty cases in accordance with the law.[93]

The death penalty is currently mandated for no fewer than 68
crimes, including embezzlement and corruption.[94]
China’s death penalty statistics remain classified as state secrets,
allowing no transparency or independently verifiable review of the
NHRAP’s goal of ensuring that the death penalty is “strictly
controlled and prudently applied.”[95]

In August 2010, the
Chinese government announced a draft amendment to China’s criminal law
which would eliminate the death penalty for a total of 13
“economy-related nonviolent offenses,” including the smuggling of
precious metals and cultural relics out of the country.[96] However, the government has provided no indication
regarding if or when the draft amendment might be approved, and, in September
2010, Chen Sixi, member of the National People’s Congress (NPC) Standing
Committee and vice chairman of the NPC’s Committee for Internal and
Judicial Affairs, announced that the government would not in fact pursue these
reforms.[97]

The international human rights organization Amnesty
International declined to publish an estimate of the total number of executions
in China in 2009 due to concerns that, “Estimates based on the publicly
available information grossly under represent the actual number the state
killed or sentenced to death.”[98] The
organization does estimate that China executes more people each year than the
rest of the world combined. The human rights organization Dui Hua estimates
that the Chinese government currently executes fewer than 5,000 people
annually, a decline from an estimated more than 10,000 ten years ago.[99]

Chinese state media reported in September 2010 that since
the Supreme People's Court (SPC) regained the authority to vet such cases in
2007, it had rejected the death penalty in 15 percent of the cases it reviewed
in 2007 and in 10 percent of cases in 2008.[100]
However, Manfred Nowak, the special rapporteur on torture and other cruel,
inhuman or degrading treatment or punishment in the UN Office of the High
Commissioner for Human Rights, has described the Supreme People's Court death
penalty review process as “just a rubber stamp” and “not a
substantive review” of the actual cases.[101]
That view is supported by the refusal of the Supreme People's Court to consider
the role of torture in handing down a death sentence to Chongqing entrepreneur
Fan Qihang, a politically sensitive case due to its connection with a
controversial anti-crime campaign launched in June 2009 by the city’s
communist party chief Bo Xilai. The court’s failure to consider evidence
of torture in Fan’s case raises serious doubts about the willingness of
the Supreme People's Court to consider mitigating evidence in politically
sensitive cases.

Fan wrote to the top court describing how he was tortured
until he confessed, and a group of lawyers, scholars and writers published an
open letter asking the court to investigate allegations of torture in
Chongqing. So all eyes were on the Supreme People’s Court to see what
difference, if any, the new regulations would make in practice. The answer came
Sept. 26 when Mr. Fan was executed.[102]

The NHRAP offered the Chinese government an opportunity to
clearly articulate transparent mechanisms to regulate and reduce the use of the
death penalty. However, the government failed to insert any such mechanisms
into the document to meaningfully address the opaque and unpredictable system
by which the death penalty is imposed in China. A revised NHRAP should call for
the following:

A precise timetable for the annual release of regularly
updated death penalty statistics including the numbers of persons executed
and the crimes for which they were executed;

An explicit commitment to eliminating the death penalty;

An invitation to the special rapporteur on extrajudicial,
summary or arbitrary executions of the United Nations High Commission for
Human Rights to evaluate capital punishment procedures to ensure that
suspects’ rights are protected and abuses of the death penalty do
not occur.

The Right to Fair Trial

The NHRAP states:

The state, in accordance with the law, guarantees the
rights of litigants, especially those charged with criminal offences, to an
impartial trial.[103]

However, the Chinese judiciary is highly politicized, and
the government has long prioritized the interests of the ruling Chinese
Communist Party over rule of law in judicial proceedings. President Hu Jintao
summarized this dynamic in December 2007 by promulgating the idea of the
“Three Supremes” which explicitly directs China’s judiciary to
rank “the constitution and laws” of China behind the
“Party’s cause [and] the people’s interest.”[104]
The NHRAP makes no attempt to address or change that reality.

China’s key legal institutions are subject to the
authority of the Party’s political and legal committees at every level.[105]
That authority often results in interference by police and prosecutors in the
ability of lawyers to effectively represent their clients, particularly in
cases considered politically sensitive.[106]
Chinese human rights activist Teng Biao, a Chinese human rights lawyer whose
social activism cost him his license to practice law in May 2008 and his
teaching position at the Law College of Beijing University, in January 2009,
criticized the NHRAP for failing to address the Chinese judiciary’s lack
of independence from political influence.[107] As a
result, Chinese lawyers “often face violence, intimidation, threats,
surveillance, harassment, arbitrary detention, prosecution, and suspension or
disbarment from practicing law or pursuing their profession.”[108]
Chinese legal scholar He Weifang has said that up to 50 percent of
China’s judges lack formal legal training, which may encourage them to
rely on guidance from their political superiors rather than legal principles as
they reach judgments.[109]

Manfred Nowak, the special rapporteur on torture and other
cruel, inhuman or degrading treatment or punishment in the UN Office of the
High Commissioner for Human Rights, concluded in a February, 2010 follow-up
report to his 1995 visit to China that the government has failed to deliver on
legal guarantees to fair trial.[110] Nowak
noted that “China has so far failed to take concrete steps to guarantee
the right to legal counsel, the presumption of innocence and the right to
remain silent.”[111]
Meanwhile, Chinese legal scholar He Weifang attributes the influence of local
governments in pressuring courts to make pro-government judgments as a critical
handicap to rule of law in China.[112] The
net effect, according to He, is that in some cases courts “have been
reduced to a proxy of local governments.”[113]

Other institutional impediments to the right to a fair trial
include a tradition by Chinese security forces of forcing confessions from
suspects.[114] The
case of Karma Samdrup highlights the reliance of Chinese security officers on
forced confessions. Samdrup, a prominent Tibetan environmental philanthropist,
was sentenced by a Xinjiang court on June 24, 2010, to a 15-year prison
sentence on apparently trumped-up charges of grave-robbing.[115]
Samdrup told a court in the city of Yanqi in the Xinjiang Autonomous Zone on
June 22, 2010, that during several months of interrogation, officers repeatedly
beat him, ordered fellow detainees to beat him, deprived him of sleep for days
on end, and drugged him with a substance that made his eyes and ears bleed—all
to extract a confession.[116]

Human Rights Watch has documented numerous unfair trials of
high-profile civil society activists and dissidents during the NHRAP period,
including those of veteran dissident Huang Qi, leading intellectual Liu Xiaobo,
and literary editor and environmentalist Tan Zuoren.[117]
The trial, conviction, and subsequent execution on December 29, 2009 of United
Kingdom citizen Akmal Shaikh, despite convincing evidence that Shaikh was
legally eligible for clemency on mental competency grounds, highlighted the
vulnerability of foreign citizens to unfair trial procedures in China.[118]

Human Rights Watch has also documented the denial of due
legal process and fair trials to suspects arrested in the aftermath of protests
in Lhasa and the Tibetan Plateau in March 2008,[119]
and following ethnic violence in the city of Urumqi in Xinjiang on July 5,
2009.[120]
Research by Human Rights Watch indicates that between March 2008 and June 2010
in Tibet and neighboring regions, “thousands of protesters and ordinary
Tibetans were arrested and detained regardless of legal procedures …
where a politicized judiciary controlled by party authorities, conducted
proceedings in which defendants had virtually no due process.”[121]
Likewise in Xinjiang, Human Rights Watch has evidence that the October 2009
trials of suspects arrested in relation to the Urumqi violence were
characterized by “serious violations of due process that compromised the
possibility of fair trials for the defendants, including restrictions on legal
representation, overt politicization of the judiciary, failure to publish
public notification of the trials, and failure to hold genuinely open trials as
mandated by law—all chronic problems in China’s judicial
system.”[122]

The NHRAP gave the Chinese government an opportunity to
clearly articulate mechanisms to prevent political influence on China’s
legal system in order to protect the right to a fair trial. However, the
Chinese government failed to list any means to meaningfully address the
problems of the politicization of China’s judicial system and the lack of
protection for the rights of lawyers and criminal suspects. A revised NHRAP
should call for the following:

Explicit renunciation of “The Three Supremes”
doctrine propagated by President Hu Jintao and public reaffirmation of the
rule of law and the need for an independent judiciary;

Explicit commitment to support the independence of
China’s legal profession by ensuring that bar associations are fully
independent, self-governing, and capable of representing the interests of
China’s legal profession.

The Rights to
Information, Redress, and Expression

The NHRAP claims:

The Chinese government will make more efforts to keep the
public informed of government affairs and improve relevant laws and regulations,
so as to guarantee citizen’s right of information.[123]
The state will take effective measures to develop the press and publications
industry and ensure that all channels are unblocked to guarantee
citizens’ right to be heard [and] institutional guarantees for the
legitimate rights of news agencies and journalists will be strengthened.[124]

Media Censorship

The NHRAP’s commitments
to strengthening the right to be heard and to be informed are laudable on
paper, but are fundamentally incompatible with the government’s pervasive
state censorship system. China’s domestic media, which is completely
state-owned, has for decades and throughout the 2009-2010 period of the NHRAP
been subject to strict government controls that ensure all reporting falls
within the boundaries of the official propaganda line.[125]
Chinese journalists must heed the state censors’ determination of taboo
(“sensitive,” or min-gan (敏感))
topics[126] that
cannot be covered in the media, or else face sanctions ranging from physical
abuse to job loss.[127] The
international nongovernmental media freedom organization the Committee to
Protect Journalists estimates that China jails more journalists than any other
country in the world, with a total of 24 reporters in prison as of December
2009. The charges, including “subversion,” and “spreading
rumors,” are often dangerously ambiguous.[128]

Restricted topics fall under the dangerously vague rubric of
issues affecting what the Chinese government defines as “social
stability,” and include references to unrest in Tibet and Xinjiang, and
coverage of Taiwan and prominent dissidents.[129] In a
September 24, 2010 media interview with Taiwan’s Want Daily, Chang
Ping, an outspoken reform-minded journalist with the Guangdong’s Southern
Daily newspaper, described how the internet revolution and the migration of
news to internet platforms have boosted the capacity of China’s censors
to purge news stories that deviate from the official line.[130]

Media control is now more concrete and more focused than it
once was. A decade ago, during the Jiang Zemin era, the authorities lacked
robust technical controls on the Internet side, so print media would often
receive orders [from propaganda authorities] saying things like: “Do not
re-print such-and-such information from the web, or such-and-such information
is rumor.” These days, we don’t often see bans of this kind.
Rather, it’s the Internet [sites] receiving bans like, “Do not
re-post news from Southern Metropolis Daily.” This is because web
controls have now become more systematized (有序了) and effective. If there is something
problematic at a website, it can now be deleted directly.[131]

In October 2008, the
Chinese government made permanent media freedoms for foreign correspondents;
these had been temporarily introduced around the Beijing Olympics.
Institutionalizing these regulations lifted restrictions that included
correspondents’ requiring rarely-granted official permission to travel
the country and interview Chinese citizens.[132] However, Chinese law continues to deny Chinese
citizens the right to work as journalists for foreign media organizations and a
new “Code of Conduct” implemented in February 2009 for local news
assistants of foreign journalists has been criticized by the Foreign
Correspondents Club of China as an impediment to reporting.[133] The Code of Conduct states that news assistants
face possible dismissal, loss of contracts, and revocation of accreditation if
they undertake any “independent reporting” for their employers.
Foreign correspondents told Human Rights Watch that the Chinese government has
not provided any clarification on its criteria for “independent
reporting,” which include functions often performed by news assistants
such as contacting government departments for confirmation or clarifications of
official statements and requests for government data. Additionally, the Code of
Conduct requires news assistants to “limit themselves to assisting with
reporting” and to “propagate positive information and ideas ...
[about] China’s history, culture and reforms.”[134]

Chinese journalists who report on “sensitive”
topics continue to be the target of violence by government officials, security
forces, and their agents.[135] On
April 10, 2010, a group of 10 unidentified thugs in camouflage outfits attacked
Beijing News reporter Yang Jie while he was taking photos at a forced
demolition site. Yang suffered facial cuts, bruises, and a smashed mobile
phone. Police at the scene briefly detained Yang’s assailants before
releasing them on the justification that their actions were a
“misunderstanding.”[136]On July
29, an unidentified man repeatedly punched China Times reporter Chen
Xiaoying in the head in what appeared to be a reprisal for Chen’s
reporting on an alleged sex scandal at a Shenzhen-based corporation. There have
been no arrests related to that assault.[137]

In 2009 and 2010, the NHRAP’s goals were further
compromised by the following developments:

February 6, 2009: The Chinese government
implemented a requirement for Hong Kong and Macau reporters to apply to
central government liaison offices for a temporary press card prior to
every reporting trip they make to mainland China. The Hong Kong
Journalists Association has expressed concern about the impact of the new
reporting permit system on media freedom and on Hong Kong and Macau media’s
ability to respond quickly to breaking news stories on the mainland.[138]

February 13, 2009: Li Dongdong, deputy director of
China’s General Administration of Press and Publication, announced a
government “blacklist” (Chinese: 黑名单) of Chinese
journalists deemed to have engaged in “illegal reporting.” Li
said that journalists placed on the blacklist would be subject to
penalties including a revocation of their accreditation and restrictions
on their employment in the media industry. Li did not specify the
government’s definition of “illegal reporting”[139]
or articulate a process by which such allegations and blacklisting could
be appealed. As a result, Chinese journalists are now at even greater risk
of official reprisals if they carry out independent reporting on subjects
the government deems sensitive.[140]

May 2009: The Guangdong provincial government
demanded—in the name of “harmony,” “stability,”
and “national interests above all”—that state media
outlets reduce “negative” coverage of issues ranging from
government officials to public protests.[141]
The taking of such a policy decision in the wake of public health and
safety scandals that were intensified and prolonged by censorship[142] bodes
ill for the development of free and independent media.

March 2010: Zhang Hong, a deputy editor with the Economic
Observer newspaper, lost his job within days of the publication of a
March 1, 2010 editorial he coauthored that 13 Chinese newspapers carried.
His editorial called for the abolition of the discriminatory household
registration system. Two months later, China Economic Times editor
Bao Yuehang was fired in apparent retaliation for a March 17, 2010 story
that exposed tainted vaccines in Shanxi province linked to the deaths of
four children and the sickening of at least 74 others.[143]

April 2010: Shanghai authorities refused to respond
to multiple applications by Hong Kong’s Apple Daily newspaper,
which is often critical of the Chinese government, for media accreditation
to cover the Shanghai Expo, which ran from May 1, 2010, to October 31,
2010. That refusal symbolized “a retreat in terms of press freedom
because the Apple Daily did get a permit to cover the 2008 Beijing
Olympics,” HKJA chairperson Mak Yin-ting told Human Rights Watch.[144]

July 23, 2010: On July 23, Gheyret Niyaz, a Uighur
journalist and the editor of a popular website called Uighurbiz,
received a 15-year prison sentence on charges of “endangering state
security” after he gave an interview to foreign media outlets after
the July 2009 ethnic violence in Xinjiang.[145]

Denial of the Rights
of Petitioners

The NHRAP states that
mechanisms to allow petitioners, generally from rural areas,[146]
to file complaints in provincial capitals and in Beijing “will be
broadened and remain unblocked.”[147] However,
Human Rights Watch has documented the systematic denial of those rights though
incarceration of petitioners in secret, illegal detention facilities known as
“black jails”[148]
throughout the 2009-2010 NHRAP period. Chinese rights activists estimate that
thousands of petitioners are ensnared annually in black jails in Beijing alone.[149]
The dangers faced by petitioners in trying to access their right to be heard
was highlighted by the June 23, 2010 attack on a senior law enforcement
official’s wife in Hubei province by plainclothes police officers
“who mistook her for a petitioner.”[150]

Internet Controls

During the 2009-2010 NHRAP period, the Chinese government
intensified its already tight control of internet content.[151]
Yu Jianrong, the chairman of the Social Issues Research Center of the Rural
Development Institute of the China Academy of Social Sciences, said in a
December 26, 2009 speech to the Beijing Law Association that the Chinese
government was determined to ensure that the internet in China serve the government’s
purposes and not become a forum for free expression:

Do we have an open media? No. Don’t think that the
Internet of today [was meant to] provide us with a space [for free expression].
The reason we have the Internet is because [the government] didn’t have a
choice. If they did, they would hope that we couldn’t even have the
Internet.[152]

Following ethnic violence in Xinjiang in early July 2009,
all internet communications and mobile phone services there were shut down from
July 5, 2009 to December 29, 2010.[153] The
government justified its actions as a means to “prevent violence from
spreading to other places,”[154] but it
became what the nongovernmental media freedom organization Reporters Without
Borders has termed the “longest-ever case of government censorship of
this kind.”[155]
Although the authorities have reconnected Xinjiang to dozens of government
websites since the end of December 2009, the government continues to impose
official blocks on popular Uighur-language news and discussion portals.[156]

An official white paper on internet policy issued on June 8,
2010, states that “Chinese citizens fully enjoy freedom of speech on the
Internet … [and] With their right to freedom of speech on the Internet
protected by the law, they can voice their opinions in various ways on the
Internet.”[157] In an
April 29, 2010 address to the Standing Committee of the National People’s
Congress, China’s parliament, Wang Chen, the minister in charge of the
State Council’s Information Office, credited government controls with creating
a “positive public opinion [that] surged with great momentum online,
creating a favorable public opinion environment there.”[158]
Yet the Chinese government imposes harsh penalties for publishing online
content it perceives as incompatible with its internet propaganda goals. For
example, in July 2009, a Xinjiang court convicted three Uighur bloggers on the
charge of “endangering state security,” one of China’s
numerous dangerously ambiguous laws used to silence dissent.[159]
The three, Dilshat Perhat, webmaster of Diyarim; Nureli, webmaster of Salkin;
and Nijat Azat, webmaster of Shabnam; received sentences of five years, three
years, and ten years, respectively, on allegations that they had failed to
quickly delete content posted to their websites about hardships in Xinjiang
and, in one case, for allowing individuals to post messages about protests in
Urumqi on July 5, 2010, which subsequently turned violent.[160]

In June 2009, the government attempted to require computer
manufacturers and importers to install Green Dam Youth Escort software on all
personal computers for the Chinese market. The government defended Green Dam as
a tool to block pornography, but analysts and technical experts in China and
abroad said the software was also programmed to censor content ranging from
political information to websites catering to the needs of China’s
lesbian, gay, bisexual, and transgender community.[161]
The Chinese government withdrew its demand for the installation of Green Dam
software on June 30, 2009, after weeks of scathing criticism from some of China’s
nearly 300 million netizens, unprecedented opposition by foreign computer
manufacturers and international business associations, and a threat from both
the United States trade representative and the US secretary of commerce that
Green Dam might prompt a World Trade Organization challenge.[162]

The NHRAP provided the Chinese government with an
opportunity to clearly articulate mechanisms to eliminate illegal restrictions
on Chinese citizens’ right to be informed and right to be heard. However,
the NHRAP fails to list any measures to do so. A revised NHRAP should call for
the following:

An end to all pre-publication censorship absent a genuine
emergency, such as a concrete and imminent threat to national security;

The abolition of legal ambiguities that threaten the
freedom of Chinese journalists embodied in criminal charges, such as
“revealing state secrets” and “inciting
subversion”;

Upholding Chinese journalists’ right to travel and
interview consenting individuals in line with both the media freedom
guarantee in article 35 of China’s constitution, and regulations
governing the legal rights of foreign correspondents in China;

A national public education campaign about the legal
rights of petitioners and the criminality of efforts to abduct, detain,
and abuse them in black jails;

An end to all arbitrary censorship of
“sensitive” terms and discussions on Chinese internet search
engines and websites.

Right to Health

The NHRAP states:

The basic framework for a basic medical and health system
covering the entire nation will be established so as to make China among the
countries providing national basic health service[163]
[and] promoting equality in right to basic health care.[164]

The Chinese government in January 2009 announced an ambitious
$125 billion dollar health reform program designed to establish a national
medical insurance program to cover the basic medical needs of 90 percent of
China’s 1.3 billion people by the end of 2011.[165]
By September 2010, government data indicated that the reform program had
already resulted in $10 billion in government spending to cover 60 percent of
the medical expenses of 833 million people.[166]

The Chinese government
also took two important steps to protect the rights of people with HIV-AIDS
during the NHRAP’s 2009-2010 period. In April 2010, the government lifted
a two-decade-long entry ban on HIV-positive foreign visitors.[167] Then on August 30, 2010, an Anhui provincial
court accepted China’s first-ever job discrimination lawsuit filed by a
teacher alleging wrongful dismissal on the grounds of his HIV-positive status.[168] The court ruled rejecting the teacher’s
lawsuit on November 12, 2010, on the grounds that China’s Teachers Law
“stipulates that a teaching job requires applicants to have both mental
and physical qualifications.”[169]

However, Human Rights Watch research over the NHRAP’s
2009-2010 duration indicates that the Chinese government failed to deliver on
health rights commitments in several key areas.

The Chinese government harasses individuals and civil
society organizations devoted to protecting the rights of China’s
HIV-AIDS population.[170] Gao
Yaojie, an activist physician who helped expose the government’s cover-up
of an HIV-AIDS epidemic in central Henan province in the 1990s, went into
self-imposed exile in the United States in August 2009 after “constant
harassment” by authorities seeking to obstruct her efforts to document
the scandal.[171] In May
2010, Wan Yanhai, China’s leading activist for sexual minorities and
people with HIV-AIDS, followed Gao into self-imposed exile. He explained that
relentless persecution by police and government officials had seriously
disrupted his work at the nongovernmental organization Aizhixing Institute.[172]
On August 6, 2010, police in Henan province detained Tian Xi, an HIV positive
HIV-AIDS rights activist seeking state compensation for victims of
China’s blood contamination scandal. Tian Xi, who himself contracted HIV
from a contaminated blood transfusion, has endured police harassment for years.
He had an altercation with a hospital chief over the issue of compensation and
pushed $600 of office equipment off a desk. He is charged with “suspicion
of intentional destruction of property”. Prosecutors are seeking a prison
sentence of three years.[173]

Human Rights Watch research undertaken in 2009 on rights
abuses related to China’s 2008 Anti-Drug Law revealed that the Chinese
government provides “almost no access to health care” in the
country’s mandatory drug detention centers.[174]
HIV positive detainees are routinely denied anti-retroviral therapy and
treatment for opportunistic infection such as tuberculosis. Instead of
medically based treatment for drug dependency, detainees are subjected to
forced labor and harsh physical punishments.[175]

The Chinese government also systematically denies essential
medical testing and treatment to thousands of children suffering from
industrial lead poisoning.[176] Hundreds
of thousands of children who live in polluted villages adjacent to lead
smelters and battery factories have been poisoned over the past decade.[177]
A combination of factors, ranging from rampant corruption and local
officials’ obeisance to central government-imposed GDP targets, have led
local officials to deny the scope and severity of lead poisoning in order to
protect various industries, regardless of their environmental and health
impacts.

As a result, security forces and local government officials
in areas affected by industrial lead poisoning are covering up some lead
poisoning cases, refusing to test some individuals for lead, or withholding or
falsifying test results.[178] The
government has also intimidated journalists and the parents of some child
victims to keep them from publicizing lead poisoning incidents, and allowed
polluting factories to continue to operate, or to secretly reopen after being
shut down.[179]

Government officials and security forces have also harassed
and intimidated parents seeking redress for the thousands of children poisoned
by toxic melamine milk in 2008.[180] On
March 30, 2010, a Beijing court tried Zhao Lianhai, who had become an activist
for victims’ families, on charges of “provoking disorder” in
retaliation for his efforts to assist the thousands who became ill.[181]
A Beijing court sentenced Zhao to a two-and-a-half-year prison term on November
10, 2010.[182] State
media reported on November 23, 2010, that Chinese government authorities had
accepted Zhao’s application for medical parole, but did not indicate if
or when Zhao might actually be released or under what possible conditions or
restrictions to his freedom of speech or movement.[183]
A posting on Zhao’s personal blog on December 28, 2010, stated that he
had been released on medical parole and that he was “deeply sorry”
for remarks he made about the Chinese government in the past.[184]
At the time of this report’s publication, Zhao’s release from
custody had not been independently confirmed and his former lawyer asserted
that Zhao’s December 23, 2010 blog posting was likely the result of
“pressure from authorities who may have given Zhao his freedom in
exchange for his silence.”[185]

The Chinese government also continues to deny an official
cover-up of the melamine poisoning during the 2008 Beijing Olympics. In May
2010, the Chinese government, the World Health Organization, and the
International Olympic Committee jointly published a book, The Health Legacy
of the 2008 Beijing Olympic Games: Successes and Recommendations, which
omits mention of the scandal.[186]

The NHRAP provided the Chinese government an opportunity to
clearly articulate mechanisms to eliminate illegal restrictions on Chinese
citizens’ right to health. A revised NHRAP should call for the following:

An immediate closure of all compulsory drug detention
facilities and an expansion of access to voluntary, affordable,
community-based outpatient drug dependence treatment;

An immediate shutdown of factories that lack systems for
the mitigation of lead and other dangerous chemical contamination and a
national initiative to make such systems mandatory;

Existing official monitoring and accountability mechanisms
to be independent of untoward official influence to ensure that factory
owners and local government officials comply with existing legislation to
protect human health and the environment. Immediate cessation of the
ongoing official harassment or harassment of people living with HIV/AIDS
and their advocates;

Immediate cessation of ongoing official harassment
of victims and family members of victims of both industrial contamination
and the 2008 melamine poisoning, and guarantees to ensure victims receive adequate
medical testing and treatment.

Rights to Freedom of
Association and Assembly

The NHRAP states:

The government will
expand citizens’ participation in political affairs in an orderly way at
all levels and in all sectors, so as to guarantee citizens’ right to
participate.[187] The channels will be broadened to support mass
organizations to participate in social management and public services, so as to
protect the public’s legitimate rights and interests.[188] The state will guarantee citizens’ rights to
criticize, give advice to, complain of, and accuse state organs and civil
servants and give full play to the role of mass organizations, social
organizations and the news media in supervising state organs and civil
servants.[189]

However, during the NHRAP’s 2009-2010 period, the
Chinese government has intensified restrictions on activities of nascent civil
society and nongovernmental organizations in areas ranging from women’s
rights activism to groups acting on behalf of people with HIV/AIDS. Yu
Jianrong, chairman of the Social Issues Research Center of the Rural
Development Institute of the China Academy of Social Sciences, said in a
December 26, 2009 speech to the Beijing Law Association that the
government’s obsession with perceptions of “social stability”
was depriving Chinese citizens of their legal right to participate in public
life.

Things that would ordinarily be considered regular social
activities can all be seen [by the government] as “elements of
instability.” For example, demonstrations, labor strikes, transportation
strikes—these activities are all being seen as “unstable.”
Now, even petitioning higher levels of government has been turned into an
“element of instability”… once the local government says that
something implicates “stability,” then forget whatever views you
may have held. Social stability has now become the highest goal of the
nation’s politics.[190]

In July 2009, the authorities shut down the Open
Constitution Initiative, a leading public interest legal aid and research
center better known under its Chinese name, Gongmeng, over alleged tax
irregularities over foreign funding. Authorities also briefly detained
Gongmeng’s founder, Xu Zhiyong, and another employee. The Beijing tax
authorities accused the research arm of Gongmeng of having “falsely
registered as a commercial enterprise in view of carrying out civic
non-commercial activities,” a move threatening to the broader NGO
community since many, if not most, nonprofit groups in China opt to register as
commercial enterprises. Doing so provides them a measure of legal status which
until recently provided a measure of protection from traditional state
hostility to the NGO sector.[191]

On March 1, 2010, the Chinese government implemented new
regulations that place additional burdens on the ability of domestic NGOs to
raise funds from international donors. The regulations introduce new
requirements for receiving donations from foreign charities, philanthropies,
and nonprofit groups, including producing notarized agreements and detailed
application forms. While governments may impose reasonable regulations on
donation procedures of nonprofit organizations, Chinese legal experts have
pointed out that the most onerous requirements do not apply to nonprofit
organizations run by the government, but only to independent NGOs. In addition,
some of the provisions are at odds with China’s own tax code. These rules
open more avenues for arbitrary interference by government agencies and create
uncertainties for civil society organizations even when they comply fully with
the new regulations.[192]

On March 25, 2010, China’s leading independent
women’s rights organization—the Women’s Legal Research and
Services Center—was abruptly notified that its affiliation with Beijing
University had been terminated.[193] In a
statement released on April 2, 2010, the Women’s Center noted that the
dissolution “was only the last one in the long series of difficulties
faced by the center in its 15-year existence.”[194]
The statement pointed to systemic problems that stunt the growth of a healthy civil
society in China, including barriers to raising charitable funds, government
hostility to public interest litigation, and regulatory uncertainties that
translate into a permanent struggle for organizational survival.[195]

The formation of independent trade unions is similarly
blocked. Although the NHRAP states that, “Guarantee will be extended to
trade unions … to carry out their work in accordance with the law and
their respective charters,”[196]
Chinese law does not recognize the right of workers to organize and form trade
unions outside the state-affiliated All-China Federation of Trade Unions
(ACFTU).[197] That
prohibition has been criticized by the International Labor Organization as
“a system of trade union monopoly [that] limits the right of workers to
form and join organizations of their own choice.”[198]
The ACFTU’s close ties to the government undermine its ability to advocate
effectively for workers.

That lack of advocacy was highlighted by the union’s
inability or unwillingness to effectively mediate labor unrest which swept the
Pearl River Delta export manufacturing zones of southern Guangdong province in
the summer of 2010. The ACFTU’s only public intervention during those
strikes was an ill-conceived mediation attempt that degenerated into a melee
resulting in the hospitalization of at least two workers.[199]
The mainly migrant workers who participated in those strikes at several
foreign-invested factories bypassed the ACFTU out of frustration with the
union’s unresponsiveness to their demands.[200]
Yet the labor activism resulted in improved pay and benefits for workers at
several factories, including those of Japan’s Honda and Denso
Corporation.[201] The
ACFTU announced in August 2010 that it would pursue reforms aimed to develop a
more democratic selection process for union leaders.[202]
However, those planned reforms will create limited opportunities for
independent union activity, given that the ACFTU has reiterated its stance that
it “should not deviate from the leadership of the Communist Party.”[203]

The NHRAP provided the
Chinese government with an opportunity to clearly articulate mechanisms to
eliminate illegal restrictions on Chinese citizens’ right to participate.
However, the NHRAP omits important ongoing violations of Chinese
citizens’ right to participate as well as measures to address them. A
revised NHRAP should call for the following:

An unequivocal public statement of government support for
the operations of China’s civil society and nongovernmental
organizations;

A new regulatory framework designed to allow civil society
organizations and NGOs to legally operate independently without
affiliation with a government entity or with registration as a commercial
entity;

An end to the ACFTU’s monopoly on union organizing
and collective bargaining and ratification of the International Labor
Organization’s Conventions No. 87 and No. 98 on freedom of association
and collective bargaining.

Guarantee of Human
Rights in the Reconstruction of Areas Hit by the Devastating Earthquake in
Wenchuan, Sichuan Province

On May 12, 2008, Sichuan province was hit by a huge
earthquake that left almost 90,000 dead or missing and inflicted massive
property damage.[204] For
the first time in a civil emergency, the Chinese government responded by
allowing thousands of volunteers to raise money, deliver relief supplies, and
assist the survivors.[205] The
Chinese government also eased its traditional restrictions on media in areas
hit by natural disasters by allowing foreign correspondents relatively
unobstructed access to the earthquake zone for the first 10 to 14 days
following the quake.[206]

However, the Chinese government subsequently began to
obstruct foreign media in the earthquake zone and responded harshly to
allegations of shoddy construction after hundreds of schools collapsed and led
to a disproportionate number of children’s deaths.[207]

The earthquake’s scale of destruction and the extent
of human suffering it inflicted prompted a massive outpouring of public
sympathy and support among the Chinese public.[208]
Public concern about quake victims—fueled in part by extensive state
media coverage of the devastation and government efforts to address
it—likely prompted the inclusion of this section in the NHRAP as a symbol
of the government’s commitment to assist the earthquake victims.

The NHRAP states that
Chinese government’s priorities in the Sichuan earthquake zone include:

Respecting earthquake victims. Registering the names of
people who died or disappeared in the earthquake and make them known to the
public.[209]

Despite that pledge, Chinese government officials and
members of the security forces and their agents have pursued a relentless
campaign of harassment and intimidation against relatives of the quake victims
and activists who have questioned the government’s responsibility for the
earthquake’s death toll. In particular, parents of the quake’s
thousands of child victims, who have demanded an official investigation of the
collapse of thousands of schools, have been the target of official efforts to
silence such demands.[210]

To date, Chinese courts have refused to accept any lawsuits
filed by parents alleging that faulty construction contributed to the collapse
of their children’s schools.[211] Not
only have many of these parents been harassed, detained, and in some cases
kicked or punched by officials and members of the security forces, but the
government has also pressured many of the victims’ families to accept
one-time compensation payments in exchange for ceasing to demand a public
accounting.[212] As
recently as June 21, 2010, police in the Sichuan provincial capital of Chengdu
detained about 40 parents of children who died in the earthquake; the parents
were attempting to petition authorities for an investigation into the collapsed
school buildings and demanding adequate compensation.[213]

Efforts by Chinese civil society groups to compile
independent lists of child earthquake victims and to investigate the
circumstances of the collapse of schools in the earthquake have not been
welcomed by the government, despite the aspiration spelled out by the NHRAP.
The government’s list of 5,335 child victims of the earthquake has been
criticized by some parents and civil society activists as a gross
underestimation.[214]
Instead of responding to these concerns, however, local officials harassed,
intimidated, and arrested those who raised such allegations.[215]
Government officials and security forces have obstructed the efforts of the
Chinese artist Ai Weiwei to draft an independent list of child victims, which
he believes number more than 7,000.[216] Others
trying to uncover or publicize information about the victims have fared worse:

Huang Qi, a veteran dissident and founder of http://www.64tianwang.com/,
a website dedicated to publicizing human rights abuses across China. Huang
was detained on June 10, 2008 in Chengdu while investigating allegations
that shoddy construction had contributed to the collapse of schools in the
earthquake. He was formally charged with “possessing state secrets”
on July 18, 2008. On November 23, 2009, a court in Chengdu in Sichuan
province sentenced Huang to three years’ imprisonment without any
public disclosure of the evidence against him or what type of secrets he
allegedly possessed.[217]

Zeng Hongling, a retired university professor.
After posting online critiques of building standards in the Sichuan
earthquake zone, Zeng was arrested in May 2008 and sentenced to a year of
re-education through labor for “inciting disturbance,”
although his sentence was later suspended.[218]

Liu Shakun, a teacher. Liu was reportedly arrested
and sentenced in August 2008 to one year of “re-education through
labor” on the charge of “disseminating rumors and disrupting
social order” for posting online photographs he had taken of
collapsed schools in the Sichuan earthquake zone. On September 24, 2008,
Liu was released from a labor camp and allowed to serve the remainder of
his sentence outside of custody.[219]

Tan Zuoren, a literary editor and environmentalist.
After trying to compile a name list of children killed in the Sichuan
earthquake, Tan was detained in March 2009 on suspicion of “inciting
subversion“ and sentenced to five years’ imprisonment on that
charge on February 10, 2010.[220]

The NHRAP provided the Chinese government with an
opportunity to clearly articulate mechanisms to address human rights abuses
related to the May 2008 Sichuan earthquake and its aftermath. However, the
NHRAP fails to identify those violations and does not list measures to address
them. A revised NHRAP should call for the following:

1.The immediate release of activists who seek to investigate the victims
and causes of their deaths, and an explicit official prohibition against
harassment by government officials and members of security forces and their
agents of citizens exercising their legal right to gather information about the
May 2008 Sichuan earthquake and circumstances related to the collapse of
schools;

2.An explicit official prohibition against harassment and
intimidation by government officials and members of security forces and their
agents of parents seeking clarification of the circumstance surrounding their
children’s deaths in the May 2008 Sichuan earthquake;

3.An explicit official prohibition against illegal obstacles that
prevent parents of children who died in the May 2008 Sichuan earthquake from
filing legal action against the Chinese government for alleged responsibility
for those deaths.

The Rights of
Minorities

The NHRAP states:

In the period 2009-2010, China will take further measures
to protect the rights of ethnic minorities.[221]

Unlike other sections of the document, here the NHRAP commits
the government to a series of measures to protect ethnic minority rights. They
include the passage of laws on regional ethnic autonomy, guarantees of
representation in China’s parliament, the National People’s
Congress, bilingual education, employment creation programs, guarantees of the
rights of ethnic minorities to learn and to use their native languages, and
state spending to accelerate the economic development of ethnic minorities.[222]
In addition, the NHRAP includes guarantees that China’s 55 official
ethnic minorities will each have at least one representative in China’s
parliament, the National People’s Congress,[223]
and that more than 95 percent of the population in the “ethnic autonomous
areas” will have access to nine years of compulsory education by 2010.[224]
The NHRAP also stipulates that China’s ethnic minorities have the right
to “learn, use, and develop” their native languages,[225]
and notes the allocation of more than 2 billion Yuan ($300 million) “to
accelerate [ethnic minorities’] economic and social development” in
2009-2010 in areas including infrastructure.[226]

However, during the 2009-2010 NHRAP period, international
human rights organizations and the United Nations have documented the Chinese
government’s failure to adequately protect several key ethnic minority
rights, particularly those of Tibetans and Uighurs in Xinjiang province. Navanethem
Pillay, the United Nations high commissioner for human rights, specifically
linked protests and ethnic violence that erupted across the Tibetan plateau in
March 2008[227] and in
the Xinjiang city of Urumqi in July 5, 2009[228] with
“underlying causes … which include discrimination and the failure
to protect minority rights.”[229]
Chinese state media rejected Pillay’s comments as “biased,”
“indiscreet,” and a reflection of “ingrained prejudice
against China.”[230]

Human Rights Watch has documented the Chinese
government’s use in Tibet of the charge of “inciting
separatism” under article 103 of the criminal law as a tool for
“conflating criticism of the government and its policies with a state
security threat.”[231] Since
the March 2008 protests across the Tibetan plateau, the Chinese government has
intensified its controls of one of the key foundations of Tibetan culture,
Tibetan Buddhism, including compelling “thousands of monks and nuns to
follow political indoctrination programs, at times through coercive means such
as collective detention in unmarked facilities.”[232]
The Qinghai provincial government’s plans to make Mandarin Chinese the
primary language of instruction in the province’s Tibetan schools by 2015
sparked student protests in several areas in the province in October 2010 over
concerns that the policy would undermine a key foundation of Tibetan culture.[233]

In Xinjiang, the Chinese government has pursued a policy
since 2002 that has supplanted the Uighur language in favor of Mandarin,
prompted burning of Uighur-language books, and imposed prohibitions on
traditional customs related to weddings, funerals, and religious pilgrimages.[234]
Those controls have only tightened since the ethnic violence in Urumqi in July
2009, rendering Xinjiang for the majority of its Uighur inhabitants, “a
police state, where they lived in fear of arrest for the slightest sign of
disloyalty toward Beijing.”[235] Those
abuses have dovetailed with economic marginalization of Uighurs through
employment discrimination against Uighur job applicants in Xinjiang by
Han-dominated employers.[236]

The plight of imprisoned Tibetan environmentalist
philanthropist Karma Samdrup is emblematic of the human rights abuses that
occur in Tibet and Xinjiang and the impunity enjoyed by the perpetrators. On
June 25, 2010, a Xinjiang court sentenced Samdrup to a 15-year prison term on
spurious charges of grave-robbing.[237]
Samdrup’s supporters characterized his prosecution and sentencing as an
official reprisal for vocally defending his two brothers, who have been in
police detention since August 2009 for attempting to expose alleged
environmental abuses by police officials in their home village in Changdu
prefecture, Tibet Autonomous Region.[238]
Samdrup’s case was rife with violations of due process and his lawyer Pu
Zhiqiang said the trial “ignored the facts, trampled on the legal system,
and violated Karma’s humanity.”[239] The
irregularities in Samdrup’s trial included the court’s refusal to
consider his testimony regarding the torture he alleged he suffered at the
hands of police attempting to extract a confession.[240]
That torture included instances in which “officers repeatedly beat him,
ordered fellow detainees to beat him, deprived him of sleep for days on end,
and drugged him with a substance that made his eyes and ears bleed.”[241]

The NHRAP provided the
Chinese government with an opportunity to clearly articulate mechanisms to
eliminate violations of the rights of ethnic minorities, particularly Tibetans
and Uighurs. However, the NHRAP fails to identify either ongoing violations of
ethnic minority rights in China or measures to address them. A revised NHRAP
should call for the following:

The immediate release of all Tibetans and Uighurs detained
in the aftermath of ethnic unrest in Tibet in March 2008 and in Urumqi in
July 2009 who have not been charged with a criminal offense consistent
with international legal standards, including those detained solely for
exercising their right to peaceful expression;

Immediate access of international monitors to prisons and
places of detention where Tibetans and Uighurs are held;

Measures to hold accountable, in a manner consistent with
international human rights law, those responsible for using excessive
force against unarmed demonstrators and/or subjecting them to arbitrary
detention or enforced disappearances.

Performing International Human Rights Duties and
Conducting Exchanges and Cooperation in the Field of International Human Rights

The NHRAP states:

In the period 2009-2010, China will continue to fulfill its
obligations to the international human rights conventions to which it has
acceded, and initiate and actively participate in exchanges and cooperation in
the field of international human rights.[242]

The Chinese government has a poor record of cooperation with
international bodies on issues of human rights. The government has rejected
repeated demands for an independent international investigation into the March
2008 protests across the Tibetan plateau and their aftermath. In early April
2008, the government denied a request from Louise Arbour, then the United
Nations high commissioner for human rights, to visit Tibet on the grounds that
it was “inconvenient.”[243] A
separate appeal, issued jointly by six United Nations special rapporteurs for “full
unhindered access,” was similarly declined.[244]
The International Committee of the Red Cross has never been allowed to carry
out such work in China.[245]
Although the Chinese government has been a party to the United Nations
Convention Relating to the Status of Refugees since 1982, the Chinese
government forbids the United Nations High Commissioner for Refugees (UNHCR)
access to North Koreans who cross the border into China to evaluate their
potential refugee status.[246]

The NHRAP reiterates a longstanding official position that
the government is undertaking “legislative, judicial and administrative
reforms” needed to “prepare the ground” for Chinese
government ratification of the UN International Covenant on Civil and Political
Rights (ICCPR).[247] Legal
experts say that the key reform necessary for China to ratify the ICCPR is
compliance with the covenant’s article 9, which deals with arbitrary
arrest and detention .[248] Jerome
Cohen, a New York University law professor who specializes in China’s
legal system, attributes the Chinese government’s reluctance to ratify
the ICCPR to the perception of Chinese security agencies that ratification
would require an end to practices which are “a key weapon in the police
arsenal employed against political and religious dissidents, hooligans,
suspects against whom sufficient evidence is lacking to sustain a criminal
conviction and all others whose conduct is deemed to be
‘antisocial’ but not ‘criminal.’”[249]
However, in 2009 and 2010, the Chinese government made no known effort, nor did
it issue a deadline, to abolish legal mechanisms that enable arbitrary
detention, including administrative detention such as re-education through
labor and house arrest.[250]

The NHRAP characterizes the government’s participation
in the UN Human Rights Council’s first Universal Periodic Review (UPR)[251]
of China’s human rights record in February 2009, as consisting of
“constructive dialogues”[252] and
the execution of “rational proposals.”[253]
Yet the Chinese government rejected every recommendation made during the
process that related to the country’s key human rights issues.[254]
Its officials refused to answer any of the questions submitted by UN members in
writing in advance of China’s UPR session and failed to provide reasoning
for the rejection of recommendations.[255] It
also made manifestly false statements about its human rights record in its UPR
report. Those included, “There is no censorship in the country,”
“No individual or press has been penalized for voicing their opinions or
views,” and, “There are no black jails in the country.”[256]
This raises questions about the Chinese government’s willingness to
fulfill its requirement as a member of the HRC to “fully cooperate with
the Council” (as set out in UN General Assembly resolution 60/251).[257]

At the 13th session of the Human Rights
Council in March 2010, the Chinese government issued an oral statement asserting that it had integrated its UPR
“accomplishments” into the NHRAP.[258] According to the statement, the Chinese government had over the
past year “earnestly implemented” the accomplishments of its UPR as
well as the NHRAP in areas including unemployment, access to medical treatment,
social welfare protection, and greatly expanded compulsory education.[259] The Chinese government also claimed to have strengthened the
establishment of rule of law and advanced human rights protections for ethnic
minorities, women, children, and the elderly, without providing any
documentation for such claims.[260] The reality of the Chinese government’s UPR submission and
its “obfuscation, denial and off-hand rejection of recommendations
and questions,”[261] cast
serious doubt on the credibility of the NHRAP’s reference to the
“accomplishments” of a UPR process that the Chinese government
intentionally undermined to prevent any substantive examination of its human
rights record.

The NHRAP also lists its ongoing annual
bilateral human rights dialogues with various countries, including the United
Kingdom, the United States, the European Union, and Norway, as evidence of its
success in the field of international human rights exchange and cooperation.
However, Human Rights Watch has consistently documented the failure of those
dialogues as mechanisms of positive change in addressing China’s human
rights problems. Those failings include the dialogues’ lack of
accountability, transparency, and clear benchmarks for progress.[262]
The Chinese government often points to the dialogue as a human rights
“deliverable,” an end in itself, or insists that human rights
issues can only be discussed in the context of those dialogues.[263]

The Chinese government is attempting to block the
publication of a United Nations report alleging that Chinese ammunition was
sent to Darfur in Sudan despite an arms embargo on the region.[264]The government has also expressed opposition to the
commission of inquiry into war crimes and crimes against humanity in Burma, as
recommended by Tomas Quintana, the United Nations special rapporteur for human
rights in Myanmar.[265] That
opposition threatens to undermine the creation of a commission to address
numerous and systemic abuses in Burma, which persist despite decades of UN
reporting and resolutions.[266]

In the summer of 2010, the Chinese government dispatched
Deputy Prime Minister Fu Ying to Oslo to warn the Norwegian Nobel Committee
that awarding the 2010 Nobel Peace Prize to imprisoned Chinese writer Liu
Xiaobo would be seen by the Chinese government as “an unfriendly
act” that could impact China’s bilateral relations with Norway.[267]
The Chinese government responded to the Nobel Committee’s October 8, 2010
decision to award Liu the 2010 Nobel Peace by referring to the decision as “blasphemy”
and “a violation of the principles of the peace prize.”[268]
In early November 2010, the Chinese government issued diplomatic notes to
embassies in Oslo, the site of the annual Nobel awards ceremony, describing Liu
as a “criminal,” urging diplomats to boycott the ceremony, and to
omit any congratulations or expressions of support for Liu’s award.[269]

The NHRAP provided the Chinese government with an
opportunity to clearly articulate its intentions to improve and expand its
performance of its international human rights duties, and conduct exchanges and
cooperation in the field of international human rights. However, the NHRAP instead
renders an apparently willfully misleading characterization of the Chinese
government’s record in these regards, while failing to list measures to
address its shortfalls. A revised NHRAP should call for the following:

An invitation to the United Nations high commissioner for human
rights to lead an investigation into the factors leading to ethnic unrest
in Tibet in March 2008 and in Urumqi in July 2009, and the Chinese
government’s response to that unrest;

Specific measures to make China’s bilateral human
rights dialogues more meaningful, including benchmarks, transparency, and
actionable deadlines on substantive issues;

A cessation of the Chinese efforts to obstruct both the UN
report on violations of the arms embargo to Sudan and the formation of a
commission of inquiry into war crimes and crimes against humanity in
Burma.

III. The NHRAP’s Omissions

The NHRAP devotes considerable attention to issues that are
at best secondary to the urgent human rights problems described above. For
example, under the NHRAP’s “Right to Health” section, the
Chinese government commits to increasing community sports facilities to 1.4
square meters per capita by 2010[270], while
the “Cultural Rights” section prioritizes “overall promotion
of digitalized movie, radio and TV service.”[271]

Yet the NHRAP does not address several major human rights
issues prioritized by both Chinese and foreign human rights activists:
China’s hukou, or household registration system; rights abuses
related to rising numbers of property disputes; and human rights concerns
related to China’s increasingly active diplomatic, aid, and investment
activities in the developing world.

China’s Hukou System

The hukou, or household registration, system denies
migrant workers and their families in China’s cities access to many of
the key benefits of permanent urban household registration including subsidized
housing, state-sponsored retirement pensions, quotas of free or subsidized
food, and guaranteed employment rights, education, and medical care.[272]

China’s 220 million
migrant workers[273] regularly and clearly express deep resentment at
the hukou system,[274] and the Chinese government has stated repeatedly
that it plans to eventually eliminate the system, though it has failed to
provide any timetable for this.[275] The United Nations Committee on Economic, Social
and Cultural Rights has also expressed concern about the hukou
system’s “de facto discrimination against internal migrants.”[276] Some municipal governments have introduced hukou-related
reforms for their migrant residents, but in some cases, the initiatives benefit
only a small percentage of migrants.[277] Yet the NHRAP does not make any mention of the hukou
system or its inherent discrimination.[278]

One of the more insidious effects of the hukou system
is its obstruction of the right to education mentioned in the NHRAP,[279]
China’s constitution,[280] and
international instruments.[281] The hukou
system deprives many of the children of the country’s estimated 220
million migrant workers access to free education in the cities, which other
children receive because of their families’ urban household registration
permits. The NHRAP’s “Right to Education” section states that
the Chinese government will “make sure that almost all the children of
migrant workers will receive nine-year compulsory education.”[282]
However, the NHRAP provides no timetable for the implementation of that
initiative, nor does it provide any details of necessary government spending
for its implementation.[283]

Sections of the NHRAP
that could have made references to government efforts to address hukou
discrimination include the right to basic living conditions,[284] the right to social security,[285] right to health,[286] and children’s rights.[287] However, the hukou is not mentioned in any
of these sections. It also could have outlined a specific timetable for the
elimination of its discriminatory aspects, which deny migrant workers and their
families the same basic social welfare benefits as urban residents with
permanent urban household registration permits.

Property Disputes, Forced Evictions, and
Demolitions

Although the NHRAP reiterates the government’s
commitment to the right to adequate housing [288]
embodied in both China’s Constitution[289] and
international instruments,[290] it
provides no concrete measures to address widespread, rampant abuse of such
rights through government-sponsored property disputes, forced evictions, and
demolitions.

China’s state media
carries almost daily reports on property disputes, which often involve angry
protests, violent showdowns between police and aggrieved property owners, and
suicides.[291] A domestic human rights organization, the Chinese
Urgent Action Working Group (CUAWG), warned in March 2010 that collusion
between corrupt officials and property developers had created “a pandemic
of illegal demolition” in China.[292] CUAWG described the rising incidence of forced
eviction and demolitions one of China’s leading causes of instability.

The Chinese government responded in January 2010 to the
increasing frequency of property disputes with new guidelines specifying
market-value compensation for state-appropriated property and stipulating that
property disputes must be resolved through the court system.[293]
However, a February 2010 report by the nongovernmental organization Chinese
Human Rights Defenders concluded that “a combination of factors,
including contradictory laws and regulations and collusion between developers
and local authorities, have created an environment in which residents are at
the mercy of real estate developers once demolition permits have been issued by
local government … [creating] abuses of citizens’ rights [that] are
widespread and significant.”[294]
Demolitions and land confiscation, often without adequate compensation or
relocation benefits, have become so rampant they have become “one of the
biggest threats toChina's stability.”[295]

The Chinese constitution guarantees both the right to own
private property and the inviolability of the homes of Chinese citizens.[296]
However, China’s Housing Demolition and Relocation Management regulation
requires citizens to vacate their homes upon the issuance of a relocation
permit by local government authorities to real estate developers.[297]
Abuses including forced relocations are common because government agencies and
developers routinely disregard the regulatory minimum 18-month notice for
homeowners to negotiate compensation for their property and relocate.[298]
Research by Chinese Human Rights Defenders suggests that collusion between
property developers, police, and judicial officials is fueling the routine
issuance of demolition orders in defiance of the legal rights of property
owners.[299]

Chinese legal scholars, including Peking University
law professor Shen Kui, attribute abuses related to execution of the Housing
Demolition and Relocation Management regulation to local government
prioritization of land sale revenue over the legal rights of Chinese citizens.[300]
Shen and other Chinese legal scholars have called for the government to issue a
new law on property seizure and demolition which builds-in explicit protection
for the rights of property owners.[301]
Current legal protections for homeowners threatened by eviction and property
demolition are routinely overridden because “many local governments get
almost half of their revenue from land trading (and) to cut that profit source
could be very hard.”[302]

The NHRAP could have addressed this issue by outlining
mechanisms to address them in either or both the “Right to Basic Living Conditions[303]”
section as well as the “Safeguarding Farmers’ Rights and
Interests”[304]
section. The NHRAP’s “Right to Basic Living Conditions”
section states an official commitment to “strictly implementing the
relevant systems…. so as to guarantee the legitimate rights and interests
of people whose housing is demolished to make way for new construction.”[305]
Similarly, The NHRAP’s “Safeguarding Farmers’ Rights and
Interests” section commits the government to “Guaranteeing
farmers’ land rights … protect[ing] farmers’ right to own and
use their own land and obtain profits from the land, and punish[ing] any
actions violating the regulations on land management.”[306]
However, the NHRAP neglects to mention that a combination of poor governance
and corruption severely undermines the accomplishment of those objectives.

A revised NHRAP should address the human rights abuses
related to rampant illegal evictions and demolitions in China by calling for:

Amended or new legislation that provides precise criteria
for eviction and demolition decisions, adequate advance notification to
homeowners of such plans, creation of a public and transparent
eviction/demolition appeals process, and strict enforcement of
market-value compensation for affected homeowners;

Establishment of a pro bono legal fund to provide legal
counsel to lower-income Chinese citizens embroiled in property disputes
with government officials and developers.

Abuses of the Rights of China’s Lesbians,
Gays, Bisexual, and
Transgender Population

The government decriminalized homosexuality in 1997 and
removed it from the official list of mental disorders in 2001, but does
not allow same-sex marriage, civil unions, or registered partnerships of same
sex relations. In March 2010, Wang Longde, a former vice minister of health,
told state media that the government needed to end discrimination against gay
men in order to more effectively combat the country’s HIV/AIDS epidemic.[307]

Despite these indications of progress, deeply entrenched
social and official discrimination against lesbian, gay, bisexual, and
transgender people in China inhibits their realization of fundamental rights of
expression and association. Beijing police forced the cancellation of the
first Mr. Gay China pageant in January 2010 without explanation.[308]
Later that month, Chinese government officials forbade local gay rights
activists from sending a Chinese delegate to the February 2010 Mr. Gay World
pageant in Oslo, Norway.[309] In
September 2010, Beijing police detained hundreds of gay men rounded up in a
park in the city’s Haidian district in an operation that appeared
designed to harass and intimidate gays.[310] The
detained men were reportedly released only after providing personal
identification and submitting to blood tests.[311]

The Chinese government failed to use the opportunity of the
NHRAP to provide specific measures to protect the right of China’s
lesbian, gay, bisexual, and transgender population. A revised NHRAP should call
for the following:

An initiative to draft new laws that forbid the abuse of
and discrimination against persons based on sexual orientation and gender
identity;

The launch of a national educational campaign on the
rights of LGBT people and the legal penalties for discrimination and abuse
of those rights;

An explicit prohibition against arrests, harassment, and
intimidation from members of the security forces on grounds of perceived
sexual preference and the announcement of specific punitive measures
against security force personnel who are found to have engaged in such misconduct,
including illegal detention and illegal forced blood tests of detainees.

The NHRAP fails to provide any guarantees that the Chinese
government plans to integrate international human rights standards into its
foreign policy, foreign investment, and foreign development initiatives. This
omission will likely only deepen growing international concern and suspicion
about the apparent willingness of the Chinese government to do business with
some of the world’s most abusive regimes.

The Chinese government offered ongoing diplomatic and
financial assistance to abusive regimes including Burma, Sudan, and Zimbabwe
during the NHRAP’s 2009-2010 period, although China uncharacteristically
agreed to United Nations sanctions against 15 North Korean officials in July
2009.[312] The
Chinese government underscored its apparent willingness to overlook gross human
rights abuses in favor of business deals in the developing world in October
2009 by inking a multibillion dollar investment deal with Guinea [313]just
weeks after elements of Guinea’s military gunned down unarmed
prodemocracy demonstrators.[314]

The Chinese government’s pressure on the Cambodian
government in December 2009 to forcibly deport a group of 20 Uighurs, including
two young children, back to China, also highlighted China’s unwillingness
to respect the international legal norms of non-refoulement.[315]
Those deportations constituted a breach of the UN Convention Relating to the
Status of Refugees and its 1967 Protocol, and the UN Convention Against Torture
and Other Cruel, Inhuman or Degrading Treatment, to which Cambodia is a party.[316]
The Chinese government labeled the deported Uighurs “criminals” and
indicated, without verification, that many were wanted for participating in
incidents such as the ethnic violence in Urumqi in July 2009.[317]
Since the deportation, the Chinese government has declined to provide any
verifiable information about the health or whereabouts of the Uighur deportees.

IV. Recommendations

To the Government of the People’s Republic of
China:

Establish an independent NHRAP review commission to evaluate the
success of the plan’s objectives for addressing torture, illegal
detention, fair trial, the rights of petitioners, the right to health, and
other issues targeted in the NHRAP which have a direct impact on the physical
safety, well-being, and quality of life of millions of Chinese citizens. The
commission should analyze the gaps between the NHRAP’s objectives and
their implementation. The commission should identify the NHRAP’s
shortfalls in order to create a revised NHRAP with benchmarks, timelines, and
periodic assessments to evaluate its implementation. The commission’s
composition should include representatives of the following:

Key government agencies involved in the drafting of the NHRAP;

Key academic institutions involved in the drafting of the NHRAP;

Key nongovernmental organizations involved in the drafting of the
NHRAP;

The Public Security Bureau, which was not involved in the
NHRAP’s drafting but is linked to many rights abuses documented in this
document; and

Chinese scholars and lawyers well-regarded by both the Chinese
government and its critics.

This review commission should consult regularly with United
Nations special rapporteurs with expertise in specific areas of NHRAP concern
including: The special rapporteur on extrajudicial, summary or arbitrary
executions; the special rapporteur on the promotion and protection of the right
to freedom of opinion and expression; the special representative of the secretary-general
on the situation of human rights defenders; the special rapporteur on the independence
of judges and lawyers; the United Nations’ independent expert on minority
issues; the special rapporteur on torture and other cruel, inhuman or degrading
treatment or punishment; and the special rapporteur on the adverse effects of
the illicit movement and dumping of toxic and dangerous products and wastes on
the enjoyment of human rights.

Hold a public, open-to-the-media consultation on that
commission’s evaluation of the successes and failures of the NHRAP. Along
with members of the public, the consultation should involve the following:

A senior government minister tasked with responsibility for human
rights development and protection;

Representatives of the ministries, agencies, academics, and
representatives of the government-organized nongovernmental organizations that
drafted the original NHRAP;

Representatives of China’s weiquan, or human rights
lawyers’ movement, which has been the target of official harassment and
intimidation throughout the NHRAP’s 2009-2010 period;

Representatives of the Ministry of State Security (MSS) and the
Public Security Bureau (PSB), whose officials are frequently linked to human
rights abuses in China.

That public consultation should develop a blueprint for a fresh,
updated National Human Rights Action Plan containing the following elements:

Priorities aimed to tackle the most egregious, ongoing abuses of
human rights in China;

Transparent benchmarks and timelines for monitoring the
plan’s implementation;

A public enforcement mechanism
aimed to ensure that all elements of China’s bureaucracy, including the
MSS and PSB, comply with the plan’s objectives.

Ensure that a new, improved human rights action plan addresses
the key shortfalls in the NHRAP, including by establishing transparent
benchmarks to measure progress in the following areas:

Enforcing the prohibitions on torture;

Enforcing prohibitions on illegal detention,
particularly arbitrary arrest and enforced disappearances in Tibet and Xinjiang
and in “black jails” across China;

Enforcing the rights to a fair trial, to freedom of association
and assembly, to expression, to information, and to redress, as guaranteed
under Chinese law;

Guaranteeing freedom of religious belief and the rights of ethnic
minorities;

Securing human rights in the reconstruction of
areas hit by the devastating earthquake in Wenchuan, Sichuan province,
particularly to ensure independent investigations into the cause of deaths of
children and their identities;

Ensuring fulfillment of international human rights
duties and obligations in the realm of exchanges and cooperation in the field
of international human rights;

Ending the death penalty and, until such time, ensuring
transparency in implementation of the death penalty, particularly through
collection and public dissemination of data on the number of executions.

Ensure that a new, improved human rights action plan addresses
significant omissions in the original NHRAP, including rights abuses related to
the Chinese government’s hukou, or household registration system,
and the omission of human rights guarantees for China’s foreign policy,
investment, and development initiatives.

Revisit and meaningfully
respond to recommendations by UN member states raised in the UNHCHR’s
first-ever Universal Periodic Review (UPR) of China’s human rights
record.

Lift the ongoing restrictions on access to Tibet through the
following initiatives:

Approve an outstanding request by the United Nations high commissioner
for human rights and six United Nations special rapporteurs to visit Tibet;

Open Tibet to unimpeded access by foreign correspondents.

Publish a specific timetable for ratification of both the
International Covenant on Civil and Political Rights and the Optional Protocol
to the Convention Against Torture.

Acknowledgments

The report was edited by Sophie Richardson, Asia advocacy
director at Human Rights Watch, and reviewed by Robin Shulman, consultant in
the Program Office, and Dinah Pokempner, general counsel.

Human Rights Watch wishes to thank several donors for their
support including David A. Jones, Jr., Mary and Michael E. Gellert, James H.
Ottaway, Jr., Anita and David Keller, and The Silicon Valley Community
Foundation, as well as a very generous anonymous donor.

[3]National Human Rights Action Plan of China (2009-2010), April 13, 2009, http://news.xinhuanet.com/english/2009-04/13/content_11177126_1.htm
(accessed August 12, 2010), introduction, para 2.
This paragraph states: “It is worth mentioning that since the
introduction of the reform and opening-up policy at the end of 1978, China has
enshrined respect for and protection of human rights in the Constitution as a
major principle of government, and has taken effective measures to promote the
cause of human rights.”

[4] The
Chinese government described the NHRAP as a response to resolution No. 71 of
the United Nations’ 1993 World Conference on Human Rights, which
recommends “that each state consider the desirability of drawing up a
national action plan whereby that State would improve the promotion and
protection of human rights.” “China re-elected to UN Human Rights
Council,” Xinhua News Agency, May 12, 2009.

[5]Article 33 of the Constitution of the People’s
Republic of China asserts that “The state respects and preserves human
rights.” The Chinese government described the NHRAP as a response to
resolution No. 71 of the United Nations’ 1993 World Conference on Human
Rights, which recommends “that each state consider the desirability of
drawing up a national action plan whereby that State would improve the
promotion and protection of human rights.”

[9] Ibid., introduction, para. 7.Those
government ministries, agencies, and government-organized nongovernmental
organizations include the Information Office of the State Council and Ministry
of Foreign Affairs, the Legislative Affairs Committee of the Standing Committee
of the National People’s Congress, Committee for Social and Legal Affairs
of the Chinese People’s Political Consultative Conference National Committee,
Supreme People’s Court, Supreme People’s Procuratorate, National
Development and Reform Commission, Ministry of Education, State Ethnic Affairs
Commission, Ministry of Civil Affairs, Ministry of Justice, Ministry of Human
Resources and Social Security, Ministry of Health, China Disabled
Persons’ Federation, and China Society for Human Rights Studies, Nankai
University, Shanghai Academy of Social Sciences, Shandong University, China
University of Political Science and Law, Chinese Academy of Social Sciences,
Beijing University, Wuhan University, Renmin University of China, and the
Central Party School. The NHRAP states that several symposia on the drafting of
the plan were convened with representation from over 20 organizations, such as
China Law Society, All-China Lawyers’ Association, China Legal Aid
Foundation, China Environmental Protection Foundation, Chinese Society of
Education, China Women’s Development Foundation, ChinaFoundation
for Poverty Alleviation, China Foundation for Disabled Persons, and China
Foundation for Human Rights Development.

[12]Wang Chen also serves as both deputy director of the
Chinese Communist Party’s (CPC) Publicity Department (formerly known as
the Propaganda Department) as well as director of the CPC’s External
Propaganda Department.

[19] House arrest, which Chinese police can impose
arbitrarily and outside of any legal procedure, results in detention at home,
with restricted and monitored internet and phone communications, and 24-hour
surveillance by unidentified and often aggressive security forces.

[27] Expert
Group Meeting on Youth Development Indicators, United Nations Headquarters,
“Indicators of Poverty and Hunger,” December 12-14, 2005,
http://www.un.org/esa/socdev/unyin/documents/ydiDavidGordon_poverty.pdf
(accessed January 3, 2010). 117 countries which participated in the World
Summit on Social Development in Copenhagen in 1995 agreed to a resolution which
defined absolute poverty as “a condition defined by severe deprivation of
basic human needs, including food, safe drinking water, sanitation facilities,
health, shelter, education and information. It depends not only on income but
also on access to services.”

[30]The MDGs, eight specific objectives including the
eradication of extreme hunger and poverty, achievement of universal primary
education, promotion of gender equality and empowerment of women, reduction of
child mortality, improvement in maternal health, combating HIV/AIDS, malaria
and other diseases, ensuring environmental sustainability and developing a
global partnership for development in the world’s poorest countries by
2015, were adopted at a UN summit of world leaders in September 2000.
“United National Millennium Development Goals,” http://www.un.org/millenniumgoals/bkgd.shtml
(accessed on August 14, 2010).

[34] National Bureau of Statistics of China,
“Statistical Communique on Labor and Social Security Development in
2008,” May 22, 2009, http://www.stats.gov.cn/english/newsandcomingevents/t20090522_402560900.htm

[41] Ibid., p. 105, “escalating environmental
pollution threatened many land, water and air systems that people depended on
for their livelihoods, sometimes with global implications. Income equalities
worsened. By 2008 per capita household consumption in the coastal region of
Guangdong was more than four times that in Tibet.”

[50]United Nations Human Rights Council, Report of the Special
Rapporteur on torture and other cruel, inhuman or degrading treatment or
punishment, Manfred Nowak, A/HRC/13/29/Add.6, February 26, 2010, No. 19, p. 37.
“The Special Rapporteur welcomes China’s efforts to improve the
situation of human rights in the country and to combat torture as proclaimed in
its National Human Rights Action Plan 2009-2010 (NHRA). He positively notes
that the NHRA unambiguously prohibits torture as well as the use of evidence
obtained through torture and declares to prevent torture by inter alia
establishing and improving supervisory mechanisms for law enforcement and for
the administration of justice, conducting physical examinations of detainees
before and after any interrogation and improving the treatment of detainees.
However, the Special Rapporteur regrets that China fails to take concrete steps
in this regard, rejects to release concrete data about enforcement efforts and
to increase transparency in the criminal justice system.”

[53]朱海兵, “非正常死亡，亟待遏制,”(“Urgently Awaiting the End of Unnatural Deaths in Detention
Centers”)浙江日报报, June 24, 2010, http://zjdaily.zjol.com.cn/html/2010-06/24/content_423806.htm?div=-1
(accessed on August 18, 2010).

[60] Human Rights Watch, I Saw It with My Own
Eyes, pp. 48-52. A number of former detainees and relatives of people
arrested after March 2008 have alleged that security forces used torture to
extract confessions and information from those arrested, including monks and
women. Conditions were so severe that detainees required hospitalization and
suffered permanent injuries. A few even died, either while in jail, or shortly
after their release.

[61] Embassy of the People’s Republic of
China in the United States of America, “Spokesman of the Chinese Embassy
in the U.S. Wang Baodong Makes a Statement regarding a Report on Tibet Related
Issues Released by Human Rights Watch,” July 22, 2010, http://www.china-embassy.org/eng/sghd/t719336.htm (accessed August 18, 2010), para. 3.

[63] “Economic detention” is a
mistranslation of “economic compensation” (经济赔偿) from the NHRAP’s Chinese-language
version. http://www.humanrights.cn/cn/dt/gnbb/t20090413_438873.htm
(accessed on November 8, 2010).

[66] Law of
the People’s Republic of China on Administrative Penalty, adopted and
promulgated on March 17, 1996. Article 16 states, “the power of
administrative penalty involving restriction of freedom of person shall only be
exercised by the public security organs.” Article 34 states that
“If a law-enforcing officer decides to impose administrative penalty on
the spot, he shall show the party his identification papers for law
enforcement, fill out an established and coded form of decision for
administrative penalty. The form of decision for administrative penalty shall
be given to the party on the spot.”

[71] Chen Guangcheng became one of China’s
best known human rights activists after he led a campaign to stop the
authorities of Linyi city from forcing peasants to have abortions and submit to
sterilization proceedings to meet population-control quotas. He was sentenced
in December 2006 on trumped-up criminal counts of destroying property and
organizing a mob to disrupt traffic.

[72] Edward Wong, “China: House arrest for
rights lawyer,” New York Times, November 4, 2010.

[73] Jerome A. Cohen and Yu-Jie Chen,
“Prisoner in his own home,” South China Morning Post, June
10, 2010.

[74]Human
Rights Watch, China – “Where Darkness knows No Limits”
Incarceration, Ill-Treatment, and Forced Labor as Drug Rehabilitation in China,”
ISBN: 1-56432-589-X, January 7, 2010, pp.7,13. In practice the law’s
ambiguous language gives local authorities wide scope to deal with suspected
drug users as they see fit. Local police are empowered to detain people for the
purpose of conducting compulsory urine tests without a reasonable suspicion of
drug use. A person is sentenced under the law is permitted to appeal, but no
process for appeals is articulated in the law, and multiple sources told Human
Rights Watch that due process rights—such as to contest one’s
detention before a court and be represented by legal counsel—are
routinely denied.

[75]The International
Covenant on Civil and Political Rights (ICCPR), to which China is a signatory,
provides that any person “deprived of his liberty by arrest or detention
shall be entitled to take proceedings before a court, in order that the court
may decide without delay on the lawfulness of his detention and order his
release if the detention is not lawful.” The UN Human Rights Committee,
which monitors compliance with the ICCPR, has interpreted this provision to
apply to “all deprivations of liberty, whether in criminal cases or in
other cases such as, for example, mental illness, vagrancy, drug addiction,
educational purposes immigration control, etc.”

[76] The International Convention for the
Protection of all Persons from Enforced Disappearances
(“Disappearances” Convention) prohibits secret detention by
government authorities and requires that enforced disappearances be
investigated and prosecuted as a serious international crime; indeed, when
“widespread and systematic” it constitutes a crime against humanity
under the convention and the Rome Statute of the International Criminal Court.
China has signed neither the Rome statute nor the “Disappearances”
Convention, which has yet to enter into force.

[77] Human Rights Watch, We Are Afraid to Even
Look for Them. Human Rights Watch documented enforced disappearances of at
least 43 men and teenage boys which took place between July 6, 2009, and the
beginning of August 2009. The actual number of the disappeared is likely
significantly higher than the number of cases documented by HRW due to strict
limitations on the ability to collect such information.

[78]Article 37
of the Constitution of the People’s Republic of China stipulates that
arrests must be conducted “with the approval or by decision of a
people’s procuratorate or by decision of a people’s courts and
arrests must be made by a public security organ.”

[80]Human
Rights Watch, An Alleyway in Hell, pp.2-4. “Black jails” are
created and used primarily by local and provincial officials to detain
petitioners who come to Beijing and provincial capitals seeking redress for
complaints that are not resolved at lower levels of government. Government
officials employ security forces and plainclothes thugs to abduct petitioners,
often violently, and then detain them in black jails. Many black jail detainees
are deprived of food, sleep, and medical care. Detainees are also subjected to
often arbitrary physical and psychological abuse including beatings, sexual
violence, theft, and intimidation. Duration of detention is arbitrary, varies
from several hours to several months, and in some cases release hinges on
payment of hefty fines.

[92]Embassy of the People’s Republic of China in the
United States of America, “Spokesman of the Chinese Embassy in the U.S.
Wang Baodong Makes a Statement regarding a Report on Tibet Related Issues
Released by Human Rights Watch,” July 22, 2010, http://www.china-embassy.org/eng/sghd/t719336.htm
(accessed August 18, 2010), para. 3.

[101] Human Rights Watch interview Manfred Nowak,
the special rapporteur on torture and other cruel, inhuman or degrading
treatment or punishment in the UN Office of the High Commissioner for Human
Rights, New York, October 29, 2010.

[102] Frank Ching, “In China, a tortuous road
to the rule of law,” Globe and Mail, October 6, 2010.

[103]National Human Rights Action Plan of China
(2009-2010), April 13, 2009, http://news.xinhuanet.com/english/2009-04/13/content_11177126_12.htm
(accessed August 12, 2010), chapter two,Guarantee of
Civil and Political Rights, (3) The Right to a fair trial para. 1.

[110] United Nations Human Rights Council, Report of
Manfred Nowak, the special rapporteur on torture and other cruel, inhuman or
degrading treatment or punishment in the UN Office of the High Commissioner for
Human Rights, A/HRC/13/29/Add.6, February 26, 2010, p. 37, No. 21.

[114] Human Rights Watch, I Saw It with My Own
Eyes, p. 12. A 2003 investigation by the Supreme People’s
Procuratorate (SPP, the State prosecution) uncovered official abuses, including
torture, which had resulted in 460 deaths and serious injuries to 117 people
throughout China.

[117] “China: Sham Trial of Veteran Human
Rights Activist,” Human Rights Watch news release, November 23, 2009, http://www.hrw.org/en/news/2009/11/23/china-sham-trial-veteran-human-rights-activist.
A court in Chengdu in Sichuan province on November
23, 2009 sentenced Huang to three years imprisonment for “possession of
state secrets” without any public disclosure of the evidence against him
or what secrets he had allegedly possessed following his investigation of the
collapse of schools in Sichuan’s earthquake zone; “China: Writers,
Scholars Press for Liu Xiaobo’s Release,” Human Rights Watch news
release, March 9, 2010, http://www.hrw.org/en/news/2010/03/09/china-scholars-writers-press-liu-xiaobo-s-release. Liu, a long-time critic of the government, was sentenced
in December 2009 to 11 years in prison for his publication of six political
essays and for his role in the drafting of Charter 08, a petition calling for
the rule of law and respect for human rights in China. Liu’s conviction
defied the Chinese constitution’s formal guarantees of “freedom of
speech, of the press, of assembly, of association, of procession and of
demonstration”; Sky Canaves, “China sentences earthquake
activist,” The Wall Street Journal, February 10, 2010. Tan’s
conviction and five-year prison term on charges of “incitement to subvert
state power” related to his compilation of a list of children killed in
the Sichuan earthquake and to his alleged efforts to organize a public
commemoration of the 20th anniversary of the June 1989 killing of unarmed
civilians in Beijing and other cities, an officially taboo topic in China. “Incitement
to subvert state power” is a charge at odds with freedom of expression as
protected under international law because it criminalizes peaceful dissent.

[126] Ibid., pp. 9-10. “Sensitive” or
taboo topics include any subject deemed to be a threat to the “social
stability” goals of the Chinese government and can range from
unflattering depictions of the ruling Chinese Communist Party to timely and
accurate information on natural disasters or public health emergencies.

[139] False news reports and individuals who
impersonate journalists are a legitimate, widespread problem in China. Inadequate
training in journalistic ethics and a national media that has traditionally
served as a tool of the Chinese Communist Party, rather than as a purveyor of
objective news and analysis, have fostered an institutional culture prone to producing
false news reports. In that context, the credibility of the Chinese
government’s assessment of “illegal reporting” is highly
problematic because the government has not issued clear and concise criteria
which define Illegal reporting, making journalists vulnerable to official
reprisals for merely reporting issues which the government would prefer to
remain covered up.

[146]Human Rights Watch,
An Alleyway in Hell, p.3. Petitioners are citizens from rural areas who
come to Beijing and provincial capitals seeking redress for abuses ranging from
illegal land grabs and corruption to police torture. China’s “letters
and visits,” or petitioning, system is a modern version of an
imperial tradition which legally permits Chinese citizens to report local
official abuses or local legal decisions to higher levels of
government. Because local courts regularly refuse to accept cases against
local officials, and because pursuing legal redress through the court system
can be prohibitively expensive, particularly for rural Chinese, petitioning has
become one of the only accessible means of legal redress.

[147]National Human Rights Action Plan of China
(2009-2010), April 13, 2009, http://news.xinhuanet.com/english/2009-04/13/content_11177126_16.htm
(accessed August 12, 2010), chapter two, Guarantee of
Civil and Political Rights, (7) The right to be heard, para. 6.

[150] Zhao Lei, “Ruckus Over the Beating of a
‘Petitioner,’” China Daily, July 21, 2010.

[151] Human Rights Watch, “Race to the
Bottom” Corporate Complicity in China’s Internet Censorship
(New York: Human Rights Watch, 2006), http://www.hrw.org/en/node/11259/section/3. “China’s system of Internet censorship and
surveillance is the most advanced in the world. While tens of thousands of
people are employed by the Chinese government and security organs to implement
a system of political censorship, this system is also aided by extensive
corporate and private sector cooperation—including by some of the world’s
major international technology and Internet companies. In China, the active
role of censor has been extended from government offices into private companies.
Some companies not only respond to instructions and pressures from Chinese
authorities to censor their materials, they actively engage in self-censorship
by using their technology to predict and then censor the material they believe
the Chinese government wants them to censor.”

[152] “Yu Jianrong: Maintaining a Baseline of
Social Stability, (Part 8)” Translation of a speech to the Beijing
Lawyers Association, December 26, 2009, http://chinadigitaltimes.net/2010/03/yu-jianrong-%E4%BA%8E%E5%BB%BA%E5%B5%98-maintaining-a-baseline-of-social-stability-part-8/
(accessed November 7, 2010).

[181] Phelim Kine (Human Rights Watch),
“China’s Public Health Whitewash,” commentary, The
Guardian, June 23, 2010, http://www.hrw.org/en/news/2010/06/23/chinas-public-health-whitewash-0.
Zhao helped to establish a grassroots advocacy group,
Home for Kidney Stones Babies, which rallied parents of sick children to demand
official compensation and an official day of remembrance. For his efforts, Zhao
faces a possible prison term of up to five years.

[187]National Human Rights Action Plan of China
(2009-2010), , April 13, 2009, Guarantee of Civil and Political Rights, (4)
Right to participate, (6) The right to participate, para. 1, http://news.xinhuanet.com/english/2009-04/13/content_11177126_15.htm
(accessed August 12, 2010).

[190] “Yu Jianrong: Maintaining a Baseline of
Social Stability,(Part 8)” Translation of a speech to the Beijing Lawyers
Association, December 26, 2009, http://chinadigitaltimes.net/2010/03/yu-jianrong-%E4%BA%8E%E5%BB%BA%E5%B5%98-maintaining-a-baseline-of-social-stability-part-7/
(accessed November 7, 2010).

[192] Ibid. One group working on HIV/AIDS prevention, the Beijing Loving Source Information Center,
which has partnered with the United Nations Children’s Fund, Oxfam, the
China AIDS Fund, and the Global Fund for Children, and other international
organizations over the years, has publicly reported on the difficulties it has
faced in complying with the new requirements. Several other NGOs have privately
reported similar difficulties but are unwilling to voice their concerns publicly
because they fear jeopardizing their work if they protest publicly and alienate
the authorities.

[193] Because China’s restrictive laws
governing the registration of nonprofit organizations mandate that applicants
be affiliated and sponsored by a governmental unit, the decision effectively
ends the existence of the center as a registered nongovernmental organization
(NGO).

[197] Trade Union Law of the People’s Republic
of China, adopted April 3, 2007, art. 2.

[198] “Remarks by Juan Somavia at a press
conference on the occasion of the signing of the Memorandum of Understanding
for cooperation between China and the ILO,” International Labor
Organization, May 17, 2001,
http://www.ilo.org/public/english/bureau/dgo/messages/2001/beijing.htm
(accessed October 17, 2007).

[227] “China: Lhasa Torch Relay Tarnishes
Olympic Movement,” Human Rights Watch news release, June 17, 2008, http://www.hrw.org/en/news/2008/06/16/china-lhasa-torch-relay-tarnishes-olympic-movement.
The protests, which started with peaceful
demonstrations by Buddhist monks on March 10, became violent on March 14 after
police began arresting monks and other Tibetan protesters. Some Tibetans then
attacked Han Chinese shops and property, and police did nothing to stop this
violence. The government sealed off Lhasa and suppressed any further unrest
with a combination of mass troop deployment, arrests and detention of several
hundred and possibly thousands of people, and extensive police surveillance of
Tibetans in order to prevent further demonstrations. On March 18, the central
government in Beijing claimed that “normalcy” had returned to Lhasa
and that the city would be reopened to foreign visitors “soon,”
although access to Tibet by foreign media and diplomats remains highly
circumscribed.

[228] “China: Xinjiang Trials Deny
Justice,” Human Rights Watch news release, October 15, 2009, http://www.hrw.org/en/news/2009/10/15/china-xinjiang-trials-deny-justice.
The protests of July 5-7, 2009 in Urumqi were one of
the worst episodes of ethnic violence in China in decades. According to
government figures, 197 people, 134 of them Han Chinese, died in the violence,
and some 1,600 were injured. Security forces arrested hundreds of suspected
protesters over the following days and weeks, and the government promised harsh
punishment—including the death penalty for the worst offenders—as
early as July 9, 2009.

[229] United Nations High Commission for Human
Rights (UNHCHR), “Statement of Ms. Navanethem Pillay, United
Nations High Commissioner for Human Rights at the 12th session of the Human
Rights Council,” September 15, 2009, http://www.unhchr.ch/Huricane/Huricane.nsf/f161d566b36240f8802566100031b4c0/2dd5a4bd46c13cefc1257631002d5b6b?OpenDocument
(accessed August 30, 2010).

[231] “China:
Ensure Fair Trial for Tibetan Filmmaker,” August 3, 2009,
http://www.hrw.org/en/news/2009/08/03/china-ensure-fair-trial-tibetan-filmmaker.
Sentences on separatism charges range from five years of imprisonment to the
death penalty.

[248] Article 9 (1) of the ICCPR prohibits
“arbitrary arrest or detention” and guarantees that “No one
shall be deprived of his liberty except on such grounds and in accordance with
such procedure that are established by law.” Article 9 (3) requires that
“Anyone arrested or detained on a criminal charge shall be brought
promptly before a judge or other officer authorized by law to exercise judicial
power and shall be entitled to trial within a reasonable tie or to release.
Article 9 (4) guarantees that “Anyone who is deprived of his liberty by
arrest or detention shall be entitled to take proceedings before a court, in
order that court may decide without delay on the lawfulness of his detention
and order his release if the detention is not lawful.”

[250] Human Rights Watch, An Alleyway in Hell,
p. 13. China’s police also legal powers to routinely impose
administrative detention via “re-education through labor,” or laojiao,
and house arrest, or ruanjin. Re-education through labor allows the
police to unilaterally impose custodial sentences of up to three years while
depriving detainees of any due process of law and judicial oversightHouse arrest, which Chinese police can
impose completely arbitrarily and outside of any legal procedure, results in
detention at home, with restricted and monitored internet and phone
communications, and 24-hour surveillance by unidentified and often aggressive
security forces.

[251] UNHCHR, “Universal Periodic
Review,” http://www.ohchr.org/EN/HRBodies/UPR/Pages/UPRMain.aspx (accessed September 4, 2010). “The Universal
Periodic Review (UPR) is a unique process which involves a review of the human
rights records of all 192 UN Member States once every four years. The UPR
is a State-driven process, under the auspices of the Human Rights Council,
which provides the opportunity for each State to declare what actions they have
taken to improve the human rights situations in their countries and to fulfill
their human rights obligations. As one of the main features of the
Council, the UPR is designed to ensure equal treatment for every country when
their human rights situations are assessed.

The UPR was created
through the UN General Assembly on 15 March 2006 by resolution 60/251, which
established the Human Rights Council itself. It is a cooperative process
which, by 2011, will have reviewed the human rights records of every
country. Currently, no other universal mechanism of this kind exists. The
UPR is one of the key elements of the new Council which reminds States of their
responsibility to fully respect and implement all human rights and fundamental
freedoms. The ultimate aim of this new mechanism is to improve the human
rights situation in all countries and address human rights violations wherever
they occur.”

[252]National Human Rights Action Plan of China
(2009-2010), April 13, 2009, http://news.xinhuanet.com/english/2009-04/13/content_11177126_25.htm
(accessed August 12, 2010), chapter five, Performing International
Human Rights Duties, and Conducting Exchanges and Cooperation in the Field of
International Human Rights, (2) Exchanges and cooperation in the field
of international human rights, para. 3.

[254]“Human Rights Watch Statement on UPR Outcome Report
on China,” Human Rights Watch newa release, June 9, 2009, http://www.hrw.org/en/news/2009/06/10/human-rights-watch-statement-upr-outcome-report-china. The government of China has rejected, without a single
exception, every recommendation made during the process that pertained to
freedom of expression and freedom of association, independence of the
judiciary, guarantees for the legal profession, protection of human rights
defenders, rights of ethnic minorities, reduction of the death penalty,
abolition of re-education through labor, prohibition of torture, media freedom,
and effective remedies for discrimination.

[257]“There is no censorship in the country” (Para.
71), whereas any reference to the Beijing massacre on June 3-4, 1989, of
peaceful protestors remains systematically suppressed 20 years later, China has
the most expensive and extensive internet censorship system in the world, and
just this week, the Chinese government issued a directive requiring
computer manufacturers selling computers in China to pre-install censorship
software;

“No
individual or press has been penalized for voicing their opinions or views”
(Para. 71), whereas criticism of the Communist Party can lead to arrest and
sentencing, as illustrated by the six-month detention of Liu Xiaobo for signing
a document calling for political reforms;

“There are
no black jails in the country” (Para. 69), whereas legal professionals,
domestic and international media, and researchers from state-run research
institutes have documented and filmed these jails in the national capital;

“There is
no such thing as law enforcement organs using state secrets to suppress human
rights defenders” (Para 104), whereas veteran dissident Huang Qi faced
state secrets charges and was subsequently convicted and sentenced to three years
in prison in November 2009 related to his investigation of the collapse of
schools in Sichuan’s earthquake zone;

“The
Chinese system of re-education-through-labor is similar to that of correctional
service in other countries” (Para. 66), whereas the government itself
claims that its existence is an obstacle to China’s ratification of the
ICCPR (Para. 63); or

“The
amended law on lawyers contains clear provisions to protect lawyer’s
rights” (Para. 70), whereas the country’s once most-prominent
lawyer, Gao Zhisheng, was the victim of an enforced disappearance by security
forces in February 2009. After more than a year of official denials regarding
Gao’s location and wellbeing, Gao reemerged in his Beijing apartment in
early April 2010 but vanished again days later, apparently back into official
custody. Gao’s location, health, and circumstances remain unknown;
while in June 2009, over 15 prominent human rights lawyers were victims of
arbitrary disbarment on account of the “sensitive nature” of the
cases they have represented.

[258]Luo
Cheng, Third Secretary of the Permanent Mission of China to the United Nations
in Geneva,

中国代表团在人权理事会第十三次会议，第六议题一般性辦轮时的发言, Verbal statement delivered on March 19, 2010 during the General Debate of
agenda Item 6 on UPR, 13th regular session of the HRC, unpublished
document on file with Human Rights Watch.

[261] “Human Rights Watch Statement on UPR
Outcome Report on China,” Human Rights Watch news release, June 9, 2009, http://www.hrw.org/en/news/2009/06/10/human-rights-watch-statement-upr-outcome-report-china. The government of China has rejected, without a single
exception, every recommendation made during the process that pertained to
freedom of expression and freedom of association, independence of the
judiciary, guarantees for the legal profession, protection of human rights
defenders, rights of ethnic minorities, reduction of the death penalty,
abolition of re-education through labor, prohibition of torture, media
freedom, and effective remedies for discrimination.

[272] Human Rights Watch, “One Year of My
Blood”: Exploitation of Migrant Construction Workers in Beijing,
Volume 20, No. 3 (C), March 11, 2008, p.25. “The holders of urban
household registration permits have long been entitled to social welfare
benefits and employment opportunities in the cities that are denied to rural
dwellers. Chinese urban residents with permits have traditionally been entitled
to state-sponsored retirement pensions, quotas of free or subsidized food,
guaranteed employment rights, education, and medical care. Migrant workers who
retain their original rural household registration have by definition been
ineligible for such benefits.”

[273] He Bolin, “They deserve a city house as
a new decade’s gift,” China Daily, December 31, 2009.

[276] Concluding Observations of the Committee on
Economic, Social and Cultural Rights: People’s Republic of
China/C.12/1/Add.10713 May 2005, para. 15.

[277] “Slow Movement: Protection of
Migrants’ Rights in 2009,” Human Rights Watch news release,
December 16, 2009, http://www.hrw.org/en/news/2009/12/16/slow-movement. In March 2009, the Guangzhou municipal government
announced that it would grant migrant workers rights to social insurance,
vocational training, and legal aid previously reserved only for hukou-bearing
residents. In June 2009, the Shanghai municipal government unveiled a plan to
extend permanent residency status to migrants who meet rigorous educational,
family planning, and tax payment history criteria, though this will only apply to
a small fraction of Shanghai’s estimated total of six million migrants.

[278] Human Rights Watch, “One Year of My
Blood”: Exploitation of Migrant Construction Workers in Beijing,
Volume 20, No. 3 (C), March 11, 2008, p.25-26. China’s hukou, or
household registration system was created through a series of laws and
regulations in the early 1950s designed to prevent a flood of impoverished
rural dwellers from moving en masse to the cities. In 1958, the Chinese
government implemented the Household Registration Rules of the People’s
Republic of China, or hukou system, which imposed stringent controls on
rural residents coming to the cities. Since the 1980s, municipal governments
have begun to ease those strict controls in response to the rising need of
industrial labor.

[279]National Human Rights Action Plan of China
(2009-2010), April 13, 2009, http://news.xinhuanet.com/english/2009-04/13/content_11177126_5.htm
(accessed August 12, 2010), chapter one, Guarantee of
Economic, Social and Cultural Rights, ( 5) Right to education, para. 1.This
section states: “Priority will be given to compulsory education and rural
education [and] the system of assistance to poor students will be improved by
increasing budget inputs, implementing all policies concerning financial aid to
such students, expanding the assistance coverage and raising the level of assistance.”

[280] Article 46 of the Constitution of the
People’s Republic of China guarantees that Chinese citizens “have
the duty as well as the right to receive education.”

[281] Article 13 of the ICESCR guarantees “the
right of everyone to education.”

[288]National Human Rights Action Plan of China
(2009-2010), April 13, 2009, http://news.xinhuanet.com/english/2009-04/13/content_11177126_2.htm
(accessed August 12, 2010), chapter one, Guarantee of
Economic, Social and Cultural Rights, (2) Right to basic living conditions,
para. 4. This section commits the Chinese government to: “Building more
commercial and affordable housing to improve the living conditions of urban
families with middle and low incomes; improving the low-rent housing program
and accelerating the pace to solve the housing problems of the urban poor; and
strictly implementing the relevant systems regarding demolition permits, fund
supervision, relevant agreements, evaluation, examination and approval of
projects to be transferred, housing security, compensation and aid, and public
hearings, so as to guarantee the legitimate rights and interests of people
whose housing is demolished to make way for new construction.”

[289] Article 13 of the Constitution of the
People’s Republic of China “protects the right of citizens to own
lawfully earned income, savings, houses and other lawful property.”

[290] Article 11 of the ICESCR guarantees “the
right of everyone to an adequate standard of living for himself and his family,
including adequate food, clothing and housing.”

[296] The
Constitution of the People’s Republic of China, article 13 states
“The state protects the right of citizens to own lawfully earned income,
saves, houses and other lawful property” while art. 39 states “The
home of citizens of the People’s Republic of China is inviolable. Unlawful
search of, or intrusion into, a citizen’s residence is prohibited.”